The Pilot-Judgment Procedure of the European Court of Human Rights [1 ed.] 9789004246447, 9789004246416

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The Pilot-Judgment Procedure of the European Court of Human Rights

The Pilot-Judgment Procedure of the European Court of Human Rights By

Dominik Haider

LEIDEN • BOSTON 2013

Library of Congress Cataloging-in-Publication Data Haider, Dominik.  The pilot-judgement procedure of the European Court of Human Rights / by Dominik Haider.   pages cm  Originally presented as the author’s thesis (doctoral)--Vienna, 2012.  Includes bibliographical references and index.  ISBN 978-90-04-24641-6 (hardback : alk. paper) -- ISBN 978-90-04-24644-7 (e-book) 1. European Court of Human Rights--Rules and practice. 2. Human rights--Europe. 3. Civil procedure--Europe. I. Title.  KJC5138.H35 2013  342.2408’50269--dc23 2013003940

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CONTENTS Preface�������������������������������������������������������������������������������������������������������������������������ix Abbreviations�������������������������������������������������������������������������������������������������������������xi PART ONE

INTRODUCTION 1 The Overload of the Strasbourg System���������������������������������������������������������3 2 The Steps of Examination to be Conducted��������������������������������������������������9 PART TWO

CONTEXT AND DEVELOPMENT OF THE PILOT-JUDGMENT PROCEDURE 3 Overview�������������������������������������������������������������������������������������������������������������� 15 4 Judicial Development Leading to Pilot Judgments���������������������������������� 16 4.1 Excessive Length of Judicial Proceedings������������������������������������������ 16 4.2 Kudła v Poland������������������������������������������������������������������������������������������� 19 4.3 Assanidze v Georgia���������������������������������������������������������������������������������� 21 4.4 Scozzari and Giunta v Italy��������������������������������������������������������������������� 22 5 Political Context and Development�������������������������������������������������������������� 24 5.1 The Reform Process��������������������������������������������������������������������������������� 24 5.2 Further Development������������������������������������������������������������������������������ 28 6 Conclusion����������������������������������������������������������������������������������������������������������� 32 PART THREE

ELEMENTS OF THE PILOT-JUDGMENT PROCEDURE 7 Overview�������������������������������������������������������������������������������������������������������������� 35 8 Definitions����������������������������������������������������������������������������������������������������������� 36 8.1 Repetitive Applications�������������������������������������������������������������������������� 36 8.2 Systemic Problems����������������������������������������������������������������������������������� 37

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9 The Elements of the Pilot-Judgment Procedure��������������������������������������� 41 9.1 Examination of a Systemic Problem��������������������������������������������������� 41 9.2 Indication of Remedial Measures�������������������������������������������������������� 43 9.3 Adjournment of Proceedings���������������������������������������������������������������� 45 9.4 Procedural Steps after a Pilot-Judgment�������������������������������������������� 47 9.5 Conferral to the Grand Chamber?������������������������������������������������������� 48 10 Conclusion�������������������������������������������������������������������������������������������������������� 49 PART FOUR

THE CONTRACTING STATES’ OBLIGATIONS UNDER THE CONVENTION 11 Overview������������������������������������������������������������������������������������������������������������ 53 12 Obligation to Implement the Convention������������������������������������������������ 55 12.1 Public International Law������������������������������������������������������������������� 55 12.2 The Convention������������������������������������������������������������������������������������ 58 12.3 Application of these Principles: Failures to Implement the Convention������������������������������������������������������������������������������������� 67 13 Obligation to Abide by Judgments of the Court������������������������������������� 70 13.1 Introduction������������������������������������������������������������������������������������������ 70 13.2 Public International Law������������������������������������������������������������������� 71 13.3 The Convention������������������������������������������������������������������������������������ 72 13.4 Application of these Principles: Failures to Comply with Judgments������������������������������������������������������������������������������������ 83 14 Pilot Judgments: A New Approach to Redress?��������������������������������������� 86 14.1 Questions����������������������������������������������������������������������������������������������� 86 14.2 Resolving a Systemic Problem at its Roots������������������������������������ 86 14.3 Installing Domestic Remedies���������������������������������������������������������� 91 14.4 Summarized Redress�������������������������������������������������������������������������� 94 14.5 Conclusion��������������������������������������������������������������������������������������������� 97 PART FIVE

THE COURT’S COMPETENCES 15 Overview����������������������������������������������������������������������������������������������������������101 16 Pilot Judgments and the Individual Complaints Procedure��������������103

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16.1 The Court’s Focus of Examination������������������������������������������������103 16.2 Restrictions on the Court’s Competences?���������������������������������107 16.3 Powers of the Court in the Individual Complaints Procedure���������������������������������������������������������������������������������������������112 16.4 Judicial Review of Domestic Legislation?�����������������������������������129 17 Determination of Remedial Measures����������������������������������������������������134 17.1 Introduction����������������������������������������������������������������������������������������134 17.2 Binding Effect of the Court’s Determinations����������������������������135 17.3 Competences: Development and Relevant Factors���������������������������������������������������������������������������������145 17.4 Convention Provisions Empowering the Court to Determine Remedial Obligations���������������������������������������������162 17.5 The Contracting States’ Domain in the Execution Process��������������������������������������������������������������������������������������������������193 17.6 Exclusive Powers of the Committee���������������������������������������������225 18 Assessment of General Measures in Friendly Settlement Judgments��������������������������������������������������������������������������������������������������������238 18.1 Introduction����������������������������������������������������������������������������������������238 18.2 The Court’s Practice in the Pilot-Judgment Procedures�������������������������������������������������������������������������������������������239 18.3 Conformity with the Convention��������������������������������������������������242 18.4 Relevance of Friendly Settlement Judgments for the Pilot-Judgment Procedure�������������������������������������������������252 18.5 Interim Conclusion���������������������������������������������������������������������������255 19 Adjournment and Striking Out of Applications�����������������������������������257 19.1 Introduction����������������������������������������������������������������������������������������257 19.2 The Court’s Practice in its Pilot-Judgment Procedures�����������257 19.3 Relevance for the Pilot-Judgment Procedure�����������������������������259 19.4 Legal Basis for the Adjournment of Parallel Applications����������������������������������������������������������������������������������������262 19.5 Legal Basis for Striking Out Parallel Applications���������������������272 19.6 Abstaining from Adjournment?�����������������������������������������������������285 19.7 Interim Conclusion���������������������������������������������������������������������������286 PART SIX

CONCLUSION Conclusion��������������������������������������������������������������������������������������������������������������291

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contents ANNEX

Annex 1 Pilot Judgments�����������������������������������������������������������������������������������299 Annex 2 Index of Case-Law������������������������������������������������������������������������������316 2.1 European Court of Human Rights�������������������������������������������������������316 2.2 Permanent Court of International Justice�����������������������������������������322 2.3 International Court of Justice���������������������������������������������������������������322 2.4 European Court of Justice����������������������������������������������������������������������323 List of Literature����������������������������������������������������������������������������������������������������325 List of Council of Europe-Documents������������������������������������������������������������331 Index�������������������������������������������������������������������������������������������������������������������������333

PREFACE Structural human rights deficiencies in Contracting States of the European Convention on Human Rights threaten the functioning of the European Court of Human Rights, as they result in large numbers of similar applications to the Court. The Pilot-Judgment Procedure was conceived as a response to these problems. Since the first Pilot Judgment was delivered in 2004, the Pilot-Judgment Procedure has become an established part of the European Court of Human Right’s case-law: By the end of 2012, in some 20 judgments the Court had ordered Contracting States to take general measures in order to mitigate or resolve structural human rights problems. Even though Protocol No. 14 to the European Convention on Human Rights has finally introduced new means to cope more effectively with the large number of pending applications, and even though this large number is now declining slightly for the first time in years, the overload of the European Court of Human Rights remains the most pressing problem currently facing the Strasbourg regime of human rights protection. Considering this, it is very likely that the Pilot-Judgment Procedure will continue to be employed in order to deal with large numbers of cases stemming from structural human rights deficiencies. However, as a result of lacking an explicit legal basis in the European Convention on Human Rights, questions have been raised as to the conformity of the PilotJudgment Procedure with the Convention. The present treatise undertakes to examine these issues. It originates in a doctoral thesis which was approved by the University of Vienna in Summer 2012. Case-law and legal literature published by autumn 2012 have been considered in the study. I would like to sincerely thank everyone who supported me in carrying out this analysis over the last four years. Prof. Wolf Okresek, who supervised the doctoral thesis, gave me considerable advice during various discussions. His comments on the drafts of the text and his countless suggestions on the latest developments within the Council of Europe were of the greatest help to me. Furthermore, I am indebted to Prof. Gabriele KucskoStadlmayer, who gave me valuable advice on the final draft of the thesis. I am especially grateful to my friends and colleagues Dr. Melina Oswald, Mag. Gernot Haidenhofer and Mag. Julia Schmoll, who commented

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preface

extensively on drafts of the text and who were always available for helpful discussions. Their help was of the greatest importance to me. Furthermore, I wish to thank Dr. Brigitte Ohms, who kindly supported me at the beginning of my examination of the European Court of Human Rights’ Pilot-Judgment Procedure. London, November 2012

ABBREVIATIONS Committee  Committee of Ministers of the Council of Europe Convention European Convention on Human Rights Court European Court of Human Rights Draft Articles Draft Articles on the Responsibility of States for Internationally Wrongful Acts ECJ European Court of Justice ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice PCIJ Permanent Court of International Justice TEU Treaty on European Union Vienna Convention Vienna Convention on the Law of Treaties

PART ONE

INTRODUCTION

CHAPTER ONE

THE OVERLOAD OF THE STRASBOURG SYSTEM Over the last decades, the number of individual applications occupying the Strasbourg system—in particular the Court, but also the Committee of Ministers as regards its task of supervising the execution of judgments according to Article 46 § 2 of the Convention1—has increased steadily2 and has been exceeding the Court’s capacities to a considerable extent.3 In September 2012, 139.500 applications were pending before judicial formations4 of the Court.5 In 2011 the Court decided on 52.188 applications, either by judgment or decision.6 Considering this relation between pending applications and the Court’s capacity do conclude cases, a deadlock of the Strasbourg system is imminent.7 The overload of the Strasbourg system became threatening particularly during the 1990s; this was mainly due to the following reasons: First, after the collapse of the former Socialist states of Central and Eastern Europe, the Council of Europe decided to invite these states to accede to the Convention in the short term.8 As a result, the number of potential applicants grew from some 450 to some 800 million9—citizens of states which were considered to have deficiencies as regards solid democratic 1 By the end of 2011, about 10.500 cases were pending before the Committee (Committee of Ministers, ‘Supervision of the execution of judgments and decisions of the European Court of Human Rights. Annual report, 2011’ 34); cf. also ‘Report of the Evaluation Group’ para 34. 2 Cf. Keller, ‘Rechtsschutzeffektivität’ 361; Egli, ‘Reform’ 768; Siess-Scherz, ‘Bestandsaufnahme’ 102. 3 Eg. Keller, ‘Rechtsschutzeffektivität’ 361; Keller, Bertschi, ‘Erfolgspotential’ 206; Ohms, ‘Gerichtshof’ 19. 4 I.e. Single-Judge formations, Committees, Chambers and the Grand Chamber. 5  accessed 28 October 2012. 6 European Court of Human Rights, ‘Annual Report 2011’ 151. 7 Eg. ‘Report of the Group of Wise Persons to the Committee of Ministers’ para 28; Bemelmans-Videc, ‘Comments’ 245 et seq; Keller, ‘Rechtsschutzeffektivität’ 359; Okresek, ‘Maßnahmen’ 633 et seq; Keller, Bertschi, ‘Erfolgspotential’ 204; Ohms, ‘Gerichtshof’ 14; Schokkenbroek, ‘Reform’ 134; Okresek, ‘Umsetzung’ 168; Wildhaber, ‘Future’ 163. For more statistical data see in particular Keller, Bertschi, ‘Erfolgspotential’ 206 et seq. 8 Nowak, Introduction 159. 9 ‘Report of the Evaluation Group’ 16; Keller, ‘Rechtsschutzeffektivität’ 360; Keller, Bertschi, ‘Erfolgspotential’ 206; Ohms, ‘Gerichtshof’ 19; Egli, ‘Reform’ 769.

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structures, the rule of law and human rights.10 Since these principles are the foundations of the Council of Europe11 and thus of the Convention,12 it was only natural that an increasing number of citizens of those states— when being deprived of their “new” rights as guaranteed by the Convention by their own state—resorted to the Court in Strasbourg.13 In addition to the large number of persons potentially confronted with human rights violations, the nature of many violations was likely to be more complex than in the “old” Contracting States due to the problems arising from the transition from a socialist to a market-based economy in the “new” Contracting States.14 Secondly, with Protocol No. 11 entering into force in 1998, the Strasbourg system was fundamentally restructured. The Court became the one and only body competent to decide on all applications alleging a violation of the Convention.15 Until then, the Court had been able to concentrate its attention on substantive legal issues in a reduced number of leading cases.16 Tasks which until then had been performed by the Commission now rested with the Court, especially the filtering of applications, factfinding, determining admissibility and conducting friendly settlement negotiations.17 Thus, besides designing a more efficient protection system with the aim of shortening the duration of the Strasbourg proceed­ ings,  this  new structure also contributed to the increasing workload of the Court.18 Thirdly, resorting to the Strasbourg protection system steadily grew more and more popular in the “old” Contracting States; this development,

10 Cf. ‘Report of the Evaluation Group’ para 15; Keller, ‘Rechtsschutzeffektivität’ 361; Ohms, ‘Gerichtshof’ 19; Breuer, ‘Urteilsfolgen’ 445; Egli, ‘Reform’ 769; Wildhaber, ‘Future’ 161, 163. However, it is to be highlighted that also “old” Contracting States are reluctant in resolving systemic human rights problems causing repetitive applications being brought before the Court, as several pilot judgments reveal (eg. Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 [ECtHR, 23 November 2010]; Rumpf v Germany App no 46344/06 [ECtHR, 2 September 2010]). 11 Cf. Article 1 et seq. of the Statute of the Council of Europe; Nowak, Introduction 157. 12 Cf. the preamble to the Convention; according to Article 59, the Contracting States are also members of the Council of Europe and thus have to respect its basic values. 13 Eg. Breuer, ‘Urteilsfolgen’ 445; Egli, ‘Reform’ 770. 14 ‘Report of the Evaluation Group’ para 15; Keller, ‘Rechtsschutzeffektivität’ 361; Wildhaber, ‘Future’ 163; cf. Judge Zagrebelsky’s Partly Dissenting Opinion to HuttenCzapska v Poland App no 35014/97 (ECtHR, 19 June 2006). 15 Articles 19 and 34. 16 ‘Report of the Evaluation Group’ para 10. 17 ‘Report of the Evaluation Group’ para 12 et seq; Ohms, ‘Gerichtshof’ 18. 18 ‘Report of the Group of Wise Persons to the Committee of Ministers’ para 26.



the overload of the strasbourg system5

a favourable one from the human rights perspective, lead to and is still leading to a further increase in the workload of the Court.19 As regards the overload of the Court, one category of cases is of particular relevance: applications alleging violations of the Convention which derive from the same structural human rights problem in a Contracting State—so-called repetitive applications.20 These applications force the Court to reiterate the same finding of a violation in a large number of wellfounded cases concerning the same structural situation in a Contracting State.21 They usually do not raise any new substantial questions as for the interpretation of the Convention; the Court merely has to apply its established case-law repeatedly. Beyond that, structural human rights problems triggering a large number of repetitive applications pose a serious threat to the Convention system:22 In 2003 some 60% of all judgments of the Court concerned repetitive cases.23 According to the Court, the majority of decisions published in its case-law database in 2011 concerned so-called “repetitive” cases.24 As a result, the Court lacks capacities for conducting its important task (besides upholding individual human rights protection25) of standard setting in the field of European Human Rights.26 The problem of an overwhelming number of repetitive applications originates from the reluctance of several Contracting States to fully adapt their national legal systems to the Convention standards—also after a judgment of the Court has (implicitly) revealed that measures are required to implement the Convention. States too often fail to execute the Court’s judgments and to implement general measures—going beyond

19 Ohms, ‘Gerichtshof’ 19. 20 Cf. Keller, Bertschi, ‘Erfolgspotential’ 207; Breuer, ‘Urteilsfolgen’ 445; Wildhaber, ‘Future’ 163. There is no consistent terminology; the Court also uses the term “clone cases” for example (Burdov v Russia [No 2] App no 33509/04 [ECtHR, 15 January 2009] para 44). As to the notion of systemic problems and of repetitive applications see Chapter 8 (p 36). 21 Cf. Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 127; E.G. v Poland App no 50425/99 (ECtHR, 23 September 2008) para 27; Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) para 51; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 82. 22 Cf. Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 234; Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 193; Breuer, ‘Urteilsfolgen’ 445; Egli, ‘Reform’ 768. 23 Council of Europe, ‘Explanatory Report to Protocol No 14’ para 7; Keller, Bertschi, ‘Erfolgspotential’ 207; Ohms, ‘Gerichtshof’ 20; Breuer, ‘Urteilsfolgen’ 445. 24 European Court of Human Rights, ‘Annual Report 2011’ 87. 25 Cf. Keller, ‘Rechtsschutzeffektivität’ 360; Okresek, ‘Umsetzung’ 169. 26 Cf. Wildhaber, ‘Future’ 163.

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the case of the individual applicant—which would be necessary to resolve a structural problem. If domestic remedies do not exist for persons affected by the structural problem, these persons are forced to resort to the Court in order to get their violations remedied.27 This implies that the problem of repetitive applications is closely linked to the Committee of Ministers’ task of supervising the execution of the Court’s judgments according to Article 46 § 2, which also involves supervising if general remedial measures have been taken.28 As a result of insufficient means to cope effectively with a large number of repetitive applications,29 the Committee of Ministers occasionally does not succeed in inducing the respondent State to implement the general measures necessary to resolve a structural human rights problem—one example is the structural problem of excessive length of judicial proceedings in Italy.30 The overload of the execution process resting with the Committee of Ministers must not be underestimated as well.31 As a reaction to the ever increasing case-load, and in particular to the high number of repetitive applications, the Court conducted its first pilot-judgment procedure in 2004 in the case of Broniowski v Poland. The applicant belonged to a group of persons who, in the aftermath of the Second World War, were forced to leave their residential territories east of the Bug River and had to abandon their property there. Decades later, the Polish State took upon itself the obligation to compensate these “repatriated” persons—an obligation which was never duly met by the Polish State: According to the Court, due to an insufficient compensation scheme in the Polish legislation some 80.000 persons still claimed to have received only insufficient compensation by the end of the last century, if they had received any at all, which interfered with Article 1 of Protocol No 1.32

27 Cf. Committee of Ministers, ‘Recommendation on the improvement of domestic remedies’. 28 Cf. Rule 6 of the Committee of Ministers’ ‘Rules for the Supervision of the Execution of Judgments’; cf. as to the notion of general measures Chapter 13.3.4 (p 76). 29 Schmahl, ‘Piloturteile’ 369, 370; Caflisch, ‘Normenkontrolle’ 521. 30 Cf. for instance Committee of Ministers, Interim Resolution CM/ResDH(2010)224, 2 December 2010 accessed 28 October 2012. 31 For statistical data see ‘Report of the Evaluation Group’ para 34 and 40. 32 As to the factual background of the case see Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 9 et seq; Popović, ‘Pilot Judgments’ 353; Garlicki, ‘Broniowski’ 177 et seq; Gattini, ‘Claims’ 280.



the overload of the strasbourg system7

In its judgment the Court found a structural human rights problem in the respondent State leading to a high number of repetitive applications.33 The Court indicated concrete measures to be taken by the respondent State to remedy that situation34 and adjourned consideration of all “clone”-cases then pending before the Court, while awaiting the respondent State’s implementation measures according to the pilot judgment.35 After the Court was satisfied that the respondent State had resolved the structural problem,36 it struck pending applications stemming from that problem out of its list.37 The pilot-judgment procedure aims at coping most effectively with widespread human rights problems leading to a large number of repetitive applications. As the Court argues, this aim may not be reached by continuing to focus exclusively on the individual complaint and the particular violation of the applicant’s rights when deciding a case, but it may only be achieved by taking also the structural roots of repeated violations into account. The judgment in the case of Broniowski is exemplary for the Court’s concept of how to deal with those human rights problems effectively. In a pilot judgment the Court will aim at determining whether there has been a violation of the Convention in the particular case, at identifying the dysfunction under national law which is at the root of the violation, at giving clear indications to the respondent State as to how it can eliminate this dysfunction, and at bringing about the creation of a domestic remedy capable of dealing with similar cases (including those already pending before the Court), or at least at bringing about the settlement of all such cases pending before the Court.38 Except for the determination whether there has been a violation in the applicant’s particular case, these

33 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 189 and 3rd operative provision. 34 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 192 et seq. and 4th operative provision. 35 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 198. 36 Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005) para 42. 37 Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005); Wolkenberg and Others v Poland App no 50003/99 (ECtHR, 4 December 2007); Witkowska-Toboła v Poland App no 11208/02 (ECtHR, 4 December 2007); E.G. v Poland App no 50425/99 (ECtHR, 23 September 2008). 38 Cf. the information note on the pilot-judgment procedure issued by the Registrar accessed 28 October 2012; cf. also Chapter 9 (p 41) as regards the elements of the pilot-judgment procedure.

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chapter one

characteristic steps of a pilot judgment are unprecedented in the Court’s case-law.39 The Court seeks to reach its aim of alleviating widespread human rights problems by two means: On the one hand, the Court strives to assist respondent States in remedying an identified defect arising from a widespread or systemic problem on the national level; once that defect has been remedied, it will cease leading to more and more similar violations of the Convention which might be brought before the Court. Therefore, the Court aims at inducing the Contracting States to adapt their domestic legal systems to the requirements of the Convention if shortcomings have come to light. On the other hand, it aims to ensure the effective processing of follow-up cases, thus to dispose of the numerous cases already lodged with the Court at the time of the delivery of the pilot judgment and to deal with potential future applications lodged before the necessary reforms on the domestic level have been completed.40 In other words, the Court aims to deal effectively with those cases which have already been triggered by a systemic problem or which will be triggered by it until it will be resolved, so that the Court does not have to decide on those applications on a case by case-basis in the meantime. To that end, the Court adjourns consideration of cases stemming from the same systemic problem with a view to asking the concerned applicants to resubmit their grievances on the domestic level once an effective domestic remedy has been installed.

39 As regards the predecessors of the pilot judgments cf. Chapter 4 (p 16). 40 Cf. Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 117, where the Court speaks of a “dual nature” of the pilotjudgment procedure.

CHAPTER TWO

THE STEPS OF EXAMINATION TO BE CONDUCTED It is the aim of this examination to assess the conformity of the pilotjudgment procedure with the Convention; therefore, it shall be analysed if there is a legal basis for the procedural steps which are characteristic for this procedural approach.41 At the beginning of this examination (in Part II) the development leading to the pilot-judgment procedure shall be analysed—as regards previous judicial steps by the Court to deal with similar, “repetitive” cases stemming from the same widespread human rights problem in a Con­ tracting State (Chapter 4) and as regards the political considerations concerning the pilot-judgment procedure during the process of reforming the Strasbourg system which lead to Protocol No. 14 (Chapter 5). Thereupon (Part III), the essential notions in the context of the pilotjudgment procedure shall be defined, namely the notions repetitive applications and systemic problems (Chapter 8). Besides, before examining the conformity of the pilot-judgment procedure with the Convention, the key elements of this procedural approach are to be compiled (Chapter 9). Subsequently, as a foundation for the further examination, the Con­ tracting States’ obligations to implement the Convention and to execute judgments of the Court are to be examined (Part IV). The pilot-judgment procedure is a reaction of the Court to failures of Contracting States to fully implement the Convention or to comprehensively execute judgments finding a violation. Therefore, the examination of a procedural approach designed to tackle these shortcomings in the implementation of the Convention is to be based on an assessment of the obligations to implement which follow from the Convention (Chapters 12 and 13). Based on this examination, it shall be examined if the remedial obligations which the Court prescribed in its pilot judgments reflect a new approach of the Court to the Contracting States’ remedial obligations deriving from the Convention (Chapter 14).

41 The characteristic elements of the pilot-judgment procedure will be examined in Chapter 9 (p 41).

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Part V shall deal with the Court’s competences to conduct pilotjudgment procedures. As an initial step of examining the conformity of the pilot-judgment procedure with the Convention it shall be assessed if the Court may focus on structural, widespread shortcomings in the framework of proceedings following individual applications (Chapter 16): The individual complaints procedure could be designed to deal exclusively with specific, individual violations of the Convention, rather than with widespread human rights problems in Contracting States, from which it could follow that the Court had to confine its attention to the very turn of events which affected the individual applicant in those cases. If the Court may utilize individual complaints proceedings to decide on widespread problems shall be examined in this Chapter. The following examinations shall analyse the conformity of the various elements of the pilot-judgment procedure with the Convention, starting with the Court’s determinations of remedial measures in its pilot judgments (Chapter 17). In this context it is to be assessed if the Court’s determinations may have a binding effect at all. Otherwise, i.e. if they were mere recommendations or opinions of the Court, they would neither bind the Contracting States when executing the pilot judgment nor the Committee when supervising the execution of this judgment—and would raise only minor problems as regards their conformity with the Convention (Chapter 17.2). Thereupon, the development in the Court’s case-law and in legal doctrine as regards explicit determinations of remedial measures in judgments is to be analysed. This analysis shall include an inquiry how certain Convention principles, which the Court and legal doctrine invoked as speaking against powers of the Court to determine remedial measures, are interrelated, namely the declaratory character of the Court’s judgments, the Contracting States’ choice of means when executing judgments, and the Committee’s (exclusive) powers to supervise the execution of judgments (Chapter 17.3). The subsequent examination shall be conducted in two consecutive steps: First, it shall be ascertained if there are any Convention provisions which may be interpreted as empowering the Court to determine general remedial measures in its judgments (Chapter 17.4). Secondly, if there are Convention provisions which may be interpreted as conceding competences of the Court to determine remedial obligations, it is to be examined if the Contracting States’ choice of means in the execution process and if the Committee’s powers of supervision of execution of judgments may be opposed to such competences of the Court to determine remedial obligations (Chapters 17.5 and 17.6).



the steps of examination to be conducted11

Besides elaborating on widespread human rights problems and determining general remedial measures in its judgments, the Court participated actively in the aftermath of its pilot judgments and assessed general remedial measures taken by the Contracting States concerned. On the one hand, the Court assessed the Contracting States’ efforts to resolve widespread problems in judgments on friendly settlements reached between the respondent States and the applicants (Chapter 18). On the other hand, after having adjourned consideration of applications stemming from the same systemic problem in pilot judgments, the Court assessed if domestic remedies installed by the respondent States after the pilot judgments offered an adequate and effective remedy to persons affected by the widespread problem. In this case the Court struck applications complaining about violations stemming from the same widespread problem out of its list of cases (Chapter 19). Part VI will comprise a conclusion of the examination. The Appendix will comprise, besides directories of literature and caselaw, a brief depiction of the most relevant pilot-judgment procedures conducted by the Court until the conclusion of this examination.

PART TWO

CONTEXT AND DEVELOPMENT OF THE PILOTJUDGMENT PROCEDURE

CHAPTER THREE

OVERVIEW The pilot-judgment procedure was one reaction to an increasing threat to the effective functioning of the Court, an attempt among others to cope effectively with the significant number of repetitive applications which jeopardized the functioning of the Convention system.1 Therefore, a comprehensive examination of the concept of the pilot-judgment procedure has to begin with an analysis of its procedural roots and its political context as regards the overload of the Court in general, and with repetitive applications in particular.2 The examination of the judicial development will focus especially on the notorious structural problem of the excessive length of judicial proceedings in Italy and on the Court’s approach in Kudła v Poland,3 in Assanidze v Georgia4 and in Scozzari and Giunta v Italy.5 Besides the judicial development, there have also been various approaches and propositions emanating from the non-judicial sphere of the Council of Europe on how to deal with the impact of repetitive applications resulting from structural human rights problems in a Contracting State. In particular over the last several years, these approaches have been closely linked to the discussions on how to re-shape the Strasbourg system in order to preserve its effectiveness.

1 Cf. for example Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 190. 2 Popović, ‘Pilot Judgments’ 354; Breuer, ‘Urteilsfolgen’ 447. 3 Kudła v Poland App no 30210/96 (ECtHR, 26 October 2000) para 3. 4 Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004). 5 Scozzari and Giunta v Italy App nos 39221/98, 41963/98 (ECtHR, 13 July 2000).

CHAPTER FOUR

JUDICIAL DEVELOPMENT LEADING TO PILOT JUDGMENTS 4.1 Excessive Length of Judicial Proceedings The problem of the excessive length of judicial proceedings in Italy may be said to be one of the oldest and most notorious structural problems the Court has to cope with.6 It became manifest in the middle of the 1980s, when the number of applications complaining about excessively long domestic court proceedings, in particular from Italy, increased considerably.7 In 1999 the Court pointed out that within the last twelve years it had to deliver 65 judgments in which it had found violations of Article 6 § 1 in proceedings exceeding a reasonable time in the civil courts in Italy.8 In 2006 the Court stated that it had adopted more than 1.000 judgments against Italy since 1999 in civil length-of-proceedings cases.9 In 1991 the Court started to conduct global, overall assessments of the total length of proceedings in a given case, instead of carrying out a thorough assessment of the duration of each procedural phase. Indeed, in various cases, the Court confined its assessment of the overall duration of proceedings to one single paragraph.10 In addition, the Court stressed that Article 6 § 1 implied the obligation of the Contracting States to organize their legal systems so as to allow the national courts to comply with the right to a final decision within a reasonable time.11 Therefore, the Court started to focus on a broader 6 Cf. Keller, Bertschi, ‘Erfolgspotential’ 208; Scordino v Italy (No 1) App no 36813/97 (ECtHR, 29 March 2006) para 174. 7 Cf. Keller, Bertschi, ‘Erfolgspotential’ 208; Villiger, Handbuch 298. 8 Bottazzi v Italy App no 34884/97 (ECtHR, 28 July 1999) para 22. 9 Scordino v Italy (No 1) App no 36813/97 (ECtHR, 29 March 2006) para 176—although delivered after the first pilot judgment, it contains revealing information on the development of this procedural approach. 10 Eg. Brigandì v Italy App no 11460/85 (ECtHR, 19 February 1991) para 30; Zanghì v Italy App no 11491/85 (ECtHR, 19 February 1991) para 21; Santilli v Italy App no 11634/85 (ECtHR, 19 February 1991) para 20. According to Villiger, Handbuch 298 (footnote 108), the Court applied this strategy for the first time in Obermeier v Austria App no 11761/85 (ECtHR, 28 June 1990). Cf. also Schmahl, ‘Piloturteile’ 372; Keller, Bertschi, ‘Erfolgspotential’ 208. 11 Brigandì v Italy App no 11460/85 (ECtHR, 19 February 1991) para 30; Zanghì v Italy App no 11491/85 (ECtHR, 19 February 1991) para 21; Santilli v Italy App no 11634/85 (ECtHR, 19 February 1991) para 20, and later in Bottazzi v Italy App no 34884/97 (ECtHR, 28 July 1999)



judicial development leading to pilot judgments17

perspective, going beyond an isolated examination of the applicant’s case, by stressing the general obligations deriving from the Convention. However, the Court did not yet link this obligation expressly to the problem of repetitive applications resulting from the same human rights problem in a Contracting State. As a further approach, aiming at disposing of repetitive length of proceedings-cases, the Court conducted a joint assessments of cases by the same Chamber12 and standardized its judgments and decisions, using scales on equitable principles for awards under Article 41.13 Obviously, these measures aimed at speeding up the examination of applications on the Strasbourg-level in order to get rid of the burden they imposed on the Court. However, the Court did not yet try to bring those cases back to the national level, neither did it ensure their effective and speedy execution by national authorities, as it was later tried with the pilot-judgment procedure. Only the Court’s emphasis of the Contracting States’ general obligation to organize their judicial system in accordance with the reasonable time-requirement contained in Article 6 § 114 can be seen as an initial step aiming at a stronger implementation of the principle of subsidiarity, since it aims at safeguarding the rights enshrined in the Convention on the domestic level.15 In four judgments of 28 July 1999 the Court pointed out that [the] frequency with which violations are found shows that there is an accumulation of identical breaches which are sufficiently numerous to amount not merely to isolated incidents. Such breaches reflect a continuing situation that has not yet been remedied and in respect of which litigants have no domestic remedy.16 para 22; Di Mauro v Italy App no 34256/96 (ECtHR, 28 July 1999) para 23; A.P. v Italy App no 35265/97 (ECtHR, 28 July 1999) para 18; Ferrari v Italy App no 33440/96 (ECtHR, 28 July 1999) para 21. The Court already laid emphasis on this obligation in two earlier judgments involving other Contracting States in the context of structural problems of excessive length of court proceedings, apparently for the first time 1981 in Buchholz v Germany App no 7759/77 (ECtHR, 6 May 1981) para 51; and later in Zimmermann and Steiner v Switzerland App no 8737/79 (ECtHR, 13 July 1983) para 29 and 31 (cf. as to the latter Okresek, ‘Umsetzung’ 170); cf. Okresek, ‘Maßnahmen’ 643. 12 See the 15 judgments delivered on 19 February 1991 (cf. Motta v Italy App no 11557/85 [ECtHR, 19 February 1991], with reference to the other judgments in para 3 of the judgment). Cf. Keller, Bertschi, ‘Erfolgspotential’ 208. 13 Cf. Scordino v Italy (No 1) App no 36813/97 (ECtHR, 29 March 2006) para 176. 14 Cf. the judgments cited in n 11 (p 16). 15 Cf. as to this aspect of the principle of subsidiarity Reid, Convention 44; Siess-Scherz, ‘Subsidiaritätsprinzip’ 88 et seq; Bernhardt, ‘Gestaltungsspielraum’ 77; cf. furthermore Chapter 17.4.6 (at p 184) as regards the principle of subsidiarity. 16 Bottazzi v Italy App no 34884/97 (ECtHR, 28 July 1999) para 22; Di Mauro v Italy App no 34256/96 (ECtHR, 28 July 1999) para 23; A.P. v Italy App no 35265/97 (ECtHR, 28 July

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chapter four

In those cases the Court identified a situation which would later, in the context of the pilot-judgment procedures, be called a systemic problem or a practice incompatible with the Convention.17 Furthermore, it is remarkable that the Court started to focus on the lack of domestic remedies—an aspect which was later taken up by the Committee of Ministers in the reform process18 and the Court itself in the pilot-judgment procedure.19 On the other hand, there are several elements of the later pilot judgments20 which were not yet contained in the four judgments of 1999: First, the Court’s finding of a “continuing situation” was not contained in the operative part of the judgments, but merely in the reasoning. The same applies to the Court’s emphasis of the respondent State’s obligations deriving from Article 6 which, secondly, seems to be intended as a reminder or an “appeal”21 rather than a legally binding order directed at the respondent State. Such an imperative order which is comprised in the operative part of the judgment is not existent in the four Grand Chamber-judgments of 1999. Finally, the Court did not adjourn examination of applications while awaiting the respondent State’s reaction to a “pilot”-judgment. However, the Italian state did react to the four judgments of 28 July 1999 and entitled persons who had been affected by the problem of excessive length of court proceedings with compensation for their losses sustained (by way of a law commonly referred to as the “Pinto-Act”22).23 The transitional provisions of the Pinto-Act offered Italian litigants the opportunity to get redress for their losses on the national level, even if they had already lodged an application with the Court. These provisions were designed to bring within the jurisdiction of the Italian courts all pertinent applications then pending before the Court that had not yet been 1999) para 18; Ferrari v Italy App no 33440/96 (ECtHR, 28 July 1999) para 21; cited verbatim in Scordino v Italy (No 1) App no 36813/97 (ECtHR, 29 March 2006) para 175. Cf. Popović, ‘Pilot judgments’ 356; Schmahl, ‘Piloturteile’ 372; Keller, Bertschi, ‘Erfolgspotential’ 208. 17 Cf. for instance Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 189; Chapter 8.2 (p 37). 18 Committee of Ministers, ‘Recommendation on the improvement of domestic remedies’. 19 Eg. Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) 6th operative provision; cf. as to this aspect Scordino v Italy (No 1) App no 36813/97 (ECtHR, 29 March 2006) para 174; Breuer, ‘Urteilsfolgen’ 446. 20 As will be analysed in Chapter 9 (p 41). 21 Cf. Popović, ‘Pilot judgments’ 356; Keller, Bertschi, ‘Erfolgspotential’ 208; OellersFrahm, ‘Entlastung’ 1028; Breuer, ‘Urteilsfolgen’ 446. 22 Law no. 89 of 24 March 2001 (cited in Scordino v Italy [No 1] App no 36813/97 [ECtHR, 29 March 2006] para 42). Cf. Popović, ‘Pilot judgments’ 356; Keller, Bertschi, ‘Erfolgspotential’ 208. 23 Ress, ‘Gerichtshof’ 62 et seq.



judicial development leading to pilot judgments19

declared admissible.24 The Court used these newly introduced remedial instruments as an opportunity to declare applications inadmissible because of non-exhaustion of domestic remedies according to Article 35 since the concerned applicants now had the opportunity to get redress on the national level.25 This approach to cope with “parallel”-applications was further developed in several pilot-judgment procedures.26 It must be pointed out that the remedial instruments installed by the Pinto-Act did not solve the structural problem underneath the repeated violation of the Convention, namely the lack of effectiveness of the Italian judicial system, but was purely compensatory.27 As far as a compensatory remedy is working properly, persons who have suffered from a violation of the Convention are excluded from presenting their case to the Court because they lose their status as victims according to Article 34.28 However, when assessing the Pinto-Act the Court pointed out that there were still divergences in the award of compensation between the Italian Court of Cassation and the Court in Strasbourg, which again made it necessary for the Court to decide in such cases.29 Accordingly, the introduction of the Pinto-remedy neither resolved the structural problem of the unreasonable length of judicial proceedings, nor effectively implemented the subsidiarity principle—to the further detriment of the individual applicants as well as of the functioning of the Strasbourg system. To conclude, the issue of excessive length of judicial proceedings in Italy has occupied the Court for many years. The various approaches of the Court to cope effectively with the vast number of that kind of applications already contained elements of the later pilot-judgment procedure and may thus be considered to be pioneering in this respect. 4.2 Kudła v Poland The Kudła-judgment, delivered in 2000, originated in an application of a Polish national who alleged, inter alia, that his right to a hearing within a 24 Section 6 of the Pinto-Act, cited in Brusco v Italy App no 69789/01 (ECtHR, 6 September 2001); Scordino v Italy (No 1) App no 36813/97 (ECtHR, 29 March 2006) para 144. 25 Brusco v Italy App no 69789/01 (ECtHR, 6 September 2001); Scordino v Italy (No 1) App no 36813/97 (ECtHR, 29 March 2006) para 144; cf. Keller, Bertschi, ‘Erfolgspotential’ 208. 26 See Chapter 19 (p 257). 27 Scordino v Italy (No 1) App no 36813/97 (ECtHR, 29 March 2006) para 143, 223; Keller, Bertschi, ‘Erfolgspotential’ 208. 28 Cf. Scordino v Italy (No 1) App no 36813/97 (ECtHR, 29 March 2006) para 187. 29 Scordino v Italy (No 1) App no 36813/97 (ECtHR, 29 March 2006) para 223, 238.

20

chapter four

reasonable time had not been respected and that he had had no effective domestic remedy whereby to complain about the excessive length of the criminal proceedings against him.30 In elaborating on the relationship between Articles 6 and 13 as regards the length of criminal proceedings,31 the Court referred to its previous case-law, according to which Article 6 § 1 was deemed to constitute a lex specialis in relation to Article 13. This because, as far as a case concerned a “civil right” under Article 6, the safeguards of this provision were stricter than and thus absorbed those of Article 13.32 In Kudła the Court changed its opinion as regards the reasonable timerequirement in Article 6 and, since there was indeed no domestic remedy whereby to complain about the length of proceedings, found a violation both of Article 6 § 1 and of Article 13. In arguing the change in its case law the Court stated that … the question of whether the applicant in a given case did benefit from trial within a reasonable time in the determination of civil rights … is a separate legal issue from that of whether there was available to the applicant under domestic law an effective remedy to ventilate a complaint on that ground.33 If Article 13 is … to be interpreted as having no application to the right to a hearing within a reasonable time as safeguarded by Article 6 § 1, individuals will systematically be forced to refer to the Court in Strasbourg complaints that would otherwise, and in the Court’s opinion more appropriately, have to be addressed in the first place within the national legal system. In the long term the effective functioning, on both the national and international level, of the scheme of human rights protection set up by the Convention is liable to be weakened.34

Thus the Court essentially based the change in its case-law on theoretical considerations concerning the scope of application of Articles 6 and 13 on the one hand, and on practical reasons concerning the functioning of the Court and the principle of subsidiarity on the other hand.35 In the last respect the Court points to the continuing accumulation of applications before it in which the only, or principal, allegation is that of a failure to ensure a hearing within a reasonable time.36 30 Kudła v Poland App no 30210/96 (ECtHR, 26 October 2000) para 3. 31 Cf. Frowein, Peukert, Menschenrechtskonvention 396; Grabenwarter, Pabel, Menschenrechtskonvention 485 et seq. 32 Kudła v Poland App no 30210/96 (ECtHR, 26 October 2000) para 146 et seq. with further references to the case-law of the Court. 33 Kudła v Poland App no 30210/96 (ECtHR, 26 October 2000) para 147. 34 Kudła v Poland App no 30210/96 (ECtHR, 26 October 2000) para 155. 35 Cf. Keller, ‘Rechtsschutzeffektivität’ 364; Keller, Bertschi, ‘Erfolgspotential’ 208. 36 Kudła v Poland App no 30210/96 (ECtHR, 26 October 2000) para 148.



judicial development leading to pilot judgments21

The significance of the Kudła-judgment lies in the Court’s stress on the link between its high case-load and the finding of a deficiency in the system of national remedies which constituted a structural problem. Only if Article 6 is interpreted as leaving room for the guarantees of Article 13, the latter provision requires the Contracting States to set up an effective domestic remedy in this respect and thus to implement the principle of subsidiarity—which will reduce the workload of the Court.37 As pointed out above, rudiments of this understanding can be found in the four length of proceedings-cases of 1999 against Italy38 and were further developed in Kudła: While in the four Grand Chamber-judgments of 1999 the Court merely pointed to the deficiencies in domestic remedies as a triggering aspect for the large number of similar applications, in Kudła the Court expressly found a legal obligation for the respondent State, deriving from Article 13, to set up an effective domestic remedy in order to reduce the number of similar applications to the Court.39 Thus the Court added one further step of development to its strategies to cope with the problem of repetitive applications by assuming a legal obligation of the respondent State to install a domestic remedy in order to deal with those cases on the national level according to the principle of subsidiarity. M. Breuer assumes that the Court already aimed at declaring similar applications inadmissible for non exhaustion of domestic remedies after an effective remedy was installed by the respondent State.40 4.3 Assanidze v Georgia The judgment in Assanidze v Georgia may be seen as a further pioneering decision on the way to the pilot-judgment procedure. The applicant alleged, in particular, a violation of his right to liberty and security for being continuously detained, despite receiving a presidential pardon or, respectively, despite being acquitted.41 The Court reiterated that it was primarily for the respondent State to choose the necessary means to abide by the final judgment of the Court. 37 Cf. Okresek, ‘Umsetzung’ 168; cf. also Ress, ‘Gerichtshof’ 62, 72. 38 Bottazzi v Italy App no 34884/97 (ECtHR, 28 July 1999) para 22; Di Mauro v Italy App no 34256/96 (ECtHR, 28 July 1999) para 23; A.P. v Italy App no 35265/97 (ECtHR, 28 July 1999) para 18; Ferrari v Italy App no 33440/96 (ECtHR, 28 July 1999) para 21; cf. p 17 above. 39 Cf. Breuer, ‘Urteilsfolgen’ 447. 40 Breuer, ‘Urteilsfolgen’ 447. 41 Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004) para 3.

22

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At the same time it stressed that the particular situation of the case did not leave a real choice to the respondent State but to arrange the immediate release of the applicant.42 Accordingly, the Court held unanimously that the respondent State had to secure the applicant’s release at the earliest possible date.43 It is not the context of the judgment which makes Assanidze a precursordecision for the later pilot judgments: There was no structural problem in the respondent State and no connection to the overload of the Court with repetitive applications; thus, the judgment had no direct implications going beyond the individual case of the applicant. However, it is enlightening as regards the judicial competences the Court assumed to be endowed with (which deviates to some extend from its previous caselaw44): The Court’s express order of release directed at the respondent State may be seen as an indication of how the Court was going to act in the later pilot judgments. Only two months later the Grand Chamber issued the Broniowski-judgment which contained an express order to take general remedial measures directed at the respondent State on how to execute the judgment.45 4.4 Scozzari and Giunta v Italy The Court has regularly referred to its judgment in the case of Scozzari and Giunta when elaborating on the remedial consequences of a systemic problem in its pilot judgments.46 In the passage of Scozzari and Giunta referred to in the pilot judgments, the Court pointed out that by Article 46 of the Convention the High Contracting Parties undertook to abide by the final judgments of the Court in any case to which they were parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach 42 Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004) para 202 et seq. 43 Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004) 14th operative provision. 44 See the case-law referred to by Judge Costa in his partly concurring opinion to the Assanidze-judgment, in particular Marckx v Belgium (App no 6833/74 [ECtHR, 13 June 1979]) and Papamichalopoulos and Others v Greece (Article 50) (App no 14556/89 [ECtHR, 31 October 1995]). 45 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) 4th operative provision; cf. as to this implication of the Assanidze-judgment Okresek, ‘Maßnahmen’ 643; Keller, Bertschi, ‘Erfolgspotential’ 209; Breuer, ‘Urteilsfolgen’ 445; Breuer, ‘Abhilfemaßnahmen’ 257. 46 Eg. Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 192; Maria Atanasiu and Others v Romania App nos 30767/05, 33800/06 (ECtHR, 12 October 2010) para 211; Grudić v Serbia App no 31925/08 (ECtHR, 17 April 2012) para 98.



judicial development leading to pilot judgments23 imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures 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 (see, mutatis mutandis, the Papamichalopoulos and Others v. Greece (Article 50) judgment … § 34). Furthermore, subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment.47

Scozzari and Giunta was pioneering in that it explicitly stated that the Contracting States might also be obliged to take general remedial measures after a judgment finding a violation—an approach which the Court took up in the pilot judgments.48 Also in judgments without orders to take general remedial measures the Court referred to Scozzari and Giunta when elaborating on the Contracting States’ remedial obligations following judgments finding violations.49 The judgment in the case of Papamich­ alopoulos, which the Court refers to in the just cited passage, does not contain a fully corresponding declaration of the Court as regards the Contracting States’ remedial obligations: In Papamichalopoulos, the Court only spoke of a “legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach”,50 which leaves open the question if the Contracting States might also be obliged to take general remedial measures after a judgment finding a violation. In Scozzari and Giunta, the Court also mentioned the Contracting States choice of means when executing a judgment, which also plays a central role in the pilot-judgment procedure.51 This choice of means had been repeatedly invoked by the Court in judgments previous to Scozzari and Giunta though.52 47 Scozzari and Giunta v Italy App nos 39221/98, 41963/98 (ECtHR, 13 July 2000) para 249. 48 Cf. Chapter 14 (p 86) as regards the Court’s approach to redress in its pilot judgments. 49 Eg. Verein gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) App no 32772/02 (ECtHR, 30 June 2009) para 85. 50 Papamichalopoulos and Others v Greece (Article 50) App no 14556/89 (ECtHR, 31 October 1995) para 34; Karl, ‘MRK Art 41’ 14. 51 Cf. Chapter 17.5 (p 193). 52 Eg. Marckx v Belgium App no 6833/74 (ECtHR, 13 June 1979) para 58; Pauwels v Belgium App no 10208/82 (ECtHR, 26 May 1988) para 41; Demicoli v Malta App no 13057/87 (ECtHR, 27 August 1991) para 45; Akdivar and Others v Turkey (Article 50) App no 21893/93 (ECtHR, 1 April 1998) para 47.

CHAPTER FIVE

POLITICAL CONTEXT AND DEVELOPMENT 5.1 The Reform Process The decade following 1990 was characterized by the enlargement of the Council of Europe, after the collapse of the former Socialist states of Central and Eastern Europe, and by the substantive changes of structure and procedure of the Strasbourg system because of Protocol No. 11. By the end of the 1990s and from then on, the workload of the Court has been exceeding its capacities considerably,53 rendering it an inherent and permanent issue of the political processes within the Council of Europe. Preparations for a substantive reform of the Convention system were initiated and lead ultimately to the adoption of Protocol No. 14 in 2004, entering into force in 2010. One of the main issues during the reform process was the identification of possible means to cope effectively with the huge number of repetitive applications.54 The Committee of Ministers, the Parliamentary Assembly as well as the Court adopted own approaches to cope with this problem—among them the pilot-judgment procedure. The approaches of the political actors, as well as their interrelation with the pilot-judgment procedure, shall be outlined in the following. In 2000, in order to make proposals on the means of guaranteeing the continued effectiveness of the Court, the Committee of Ministers installed an Evaluation Group, which presented its Report in September 2001.55 Furthermore, the Parliamentary Assembly focused for the first time on the problem of the widespread failure of Contracting States to execute the Court’s judgments, which was later tackled by the Court in the pilot-judgment procedures. The Assembly stated that the Committee

53 See above Chapter 1 (p 3). 54 Steering Committee for Human Rights, ‘Guaranteeing the long-term effectiveness’ para 7 et seq; ‘Report of the Evaluation Group’ para 51 and 60; cf. Okresek, ‘Maßnahmen’ 634; Schokkenbroek, ‘Reform’ 133; Paraskeva, ‘Pilot Judgment Procedure’. 55 ‘Report of the Evaluation Group’. Cf. also Schmahl, ‘Piloturteile’ 373; Ohms, ‘Gerichtshof’ 14 et seq; Breuer, ‘Urteilsfolgen’ 447; Schokkenbroek, ‘Reform’ 135.



political context and development25

of Ministers did not exert enough pressure when supervising the execution of judgments. Furthermore, it invited the Court to indicate how the concerned national authorities should execute its judgments so that they could take the required individual and general measures—an invitation which too was taken up by the Court in the later pilot-judgment procedures.56 As an own initiative, the Assembly decided to assume a pro-active approach itself by systematically exerting pressure on the Contracting States to execute the Court’s judgments.57 In addition, the Assembly stated that the Committee, when exercising its function under Article 46, should ensure that the measures taken by the Contracting States constitute effective means to prevent further violations of the Convention.58 In its Report of September 2001 the Evaluation Group of the Committee of Ministers put further emphasis on the importance of inducing respondent States to adopt general measures in response to a judgment of the Court, in order to avoid the occurrence of repetitive applications. The Evaluation Group elaborated on approaches which were later seized on by the Court in the pilot-judgment procedures, again for instance the indication of general measures to be adopted by the respondent State59 or the adjournment of consideration of applications, while awaiting the respondent State’s attempts to solve a structural problem.60,61 The Evaluation Group suggested that the Court should notify the Committee of Ministers if a judgment revealed an underlying structural problem, in order to conduct a special procedure allowing for expedited treatment.62 Empha­sis was put on the issue of repetitive applications.63 The Parliamentary Assem­ bly again pointed to the increasing number of individual applications, 56 Eg. Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 136 et seq; Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 238 et seq; Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 193. 57 Parliamentary Assembly, ‘Execution of judgments of the European Court of Human Rights’; cf. Bemelmans-Videc, ‘Comments’ 249 et seq; Okresek, ‘Maßnahmen’ 639 et seq. 58 Parliamentary Assembly, ‘Execution of judgments of the European Court of Human Rights’; cf. Okresek, ‘Umsetzung’ 168. 59 Eg. Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 136 et seq; Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 238 et seq; Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 193. 60 Eg. Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 143; HuttenCzapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 247; Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 198. 61 ‘Report of the Evaluation Group’ para 48 et seq. As to the implications of this report see Schmahl, ‘Piloturteile’ 373; Keller, Bertschi, ‘Erfolgspotential’ 212; Breuer, ‘Urteils­ folgen’ 447. 62 ‘Report of the Evaluation Group’ para 51. 63 ‘Report of the Evaluation Group’ para 43, 51, 60 et seq, 100.

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leading to a backlog of cases. It recommended that the Committee of Ministers should work towards a proper implementation of the decisions of the Court in the Contracting States.64 In 2002, after an Interim Report of the Steering Committee on the progress of its work,65 the Committee of Ministers exerted further pressure on the involved bodies, instructing the Ministers’ Deputies to take steps to accelerate the ongoing work and to present a set of coherent proposals to improve the (deteriorating) situation.66 The Parliamentary Assembly reported on its own activity of exerting pressure on the Contracting States to implement the Court’s judgments and again called upon national delegations to take all necessary steps to ensure a speedy and effective execution of judgments.67 Furthermore, the Assembly repeated its recommendation to the Committee of Ministers to be more firm in ensuring the execution of the Court’s judgments.68 These documents indicate an inefficacy of the Committee in performing its task of supervising the execution of the Court’s judgments.69 In 2003 the reform of the Strasbourg system was further advanced. The Final Report of the Steering Committee, which apparently referred to the term “pilot judgment” for the first time,70 suggested that once a judgment pointing to a structural problem had been delivered, the respondent State should ensure that applicants have an effective remedy that enables them to bring their case before a competent national authority.71 The Court also argued in support of the pilot-judgment procedure and suggested that it should be further examined.72 The Committee of Ministers instructed the 64 Parliamentary Assembly, ‘Recommendation. Structures, procedures and means of the European Court of Human Rights’ (no Resolution adopted). 65 Steering Committee for Human Rights, ‘Interim Report of the CDDH to the Committee of Ministers. Guaranteeing the long-term effectiveness of the European Court of Human Rights’. 66 Committee of Ministers, ‘Declaration. The Court of Human Rights for Europe’. 67 Parliamentary Assembly, ‘Resolution. Implementation of decisions of the European Court of Human Rights’. 68 Parliamentary Assembly, ‘Recommendation. Implementation of decisions of the European Court of Human Rights’. 69 In a reply to the Parliamentary Assembly’s Recommendation Rec(2002)1576, the Committee of Ministers emphasizes, however, that supervision of the execution of judgments of the Court is one of the Committee’s main priorities (adopted at the Ministers’ Deputies 883rd meeting on 26 March 2003 accessed 28 October 2012). 70 Cf. Breuer, ‘Urteilsfolgen’ 447. 71 Steering Committee for Human Rights, ‘Guaranteeing the long-term effectiveness of the European Court of Human Rights. Final report containing proposals of the CDDH’ para 9 et seq. 72 ‘Position paper of the Court on proposals for reform of the European Convention’ CDDH-GDR(2003)024, para 43 et seq.



political context and development27

Ministers’ Deputies to draft the relevant amendments to the Convention;73 the Steering Committee reported on the progress of its work later that year, expressing its opinion that pilot-judgment procedures could be conducted without an express legal basis in the Convention.74 2004 was crucial as regards the endeavour of resolving the problem of the excessive workload of the Court; the 114th Session of the Committee of Ministers was characterized by approaches to reform the Strasbourg system. After the Steering Committee had submitted its Final Activity Report,75 followed by an opinion of the Parliamentary Assembly,76 the Committee of Ministers adopted Protocol No. 1477 and various other documents dealing with preserving the effectiveness of the Court.78 Protocol No. 14 extends the competences of the Court’s Committees by authorizing them, according to Article 28, to render judgments on the merits if the underlying question of the case is already subject of established case-law of the Court. This competence is designed in particular to cope more effectively with repetitive applications.79 However, Protocol No. 14 does not contain a specific legal basis for the pilot-judgment procedure80— against the suggestions of the Court.81 Only the Explanatory Report suggests that it would be useful if the Court adopted a special procedure so as to give priority treatment to judgments that identify a structural problem capable of generating a significant number of repetitive applications, with a view to securing speedy execution of the judgment.82 Apart from that,

73 Committee of Ministers, ‘Declaration. Guaranteeing the long-term effectiveness of the European Court of Human Rights’. 74 Steering Committee for Human Rights, ‘Guaranteeing the long-term effectiveness of the European Court of Human Rights—Implementation of the Declaration adopted by the Committee of Ministers at its 112th Session (14–15 May 2003). Interim Activity Report’ para 20. 75 Steering Committee for Human Rights, ‘Guaranteeing the long-term effectiveness of the European Court of Human Rights—Implementation of the Declaration adopted at its 112th Session (14–15 May 2003). Final Activity Report’. 76 Parliamentary Assembly, ‘Opinion. Draft Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms amending the control system of the Convention’. 77 Council of Europe, ‘Explanatory Report to Protocol No 14’. 78 E.g. Committee of Ministers, ‘Declaration. Ensuring the effectiveness of the implementation of the European Convention on Human Rights at national and European levels’; Committee of Ministers, ‘Recommendation on the improvement of domestic remedies’; Committee of Ministers, ‘Resolution on judgments revealing an underlying systemic problem’; cf. Keller, Bertschi, ‘Erfolgspotential’ 213; Egli, ‘Reform’ 772. 79 Council of Europe, ‘Explanatory Report to Protocol No 14’ para 68. 80 Cf. Schmahl, ‘Piloturteile’ 373; Garlicki, ‘Broniowski’ 183. 81 Cf. Gattini, ‘Claims’ 279. 82 Council of Europe, ‘Explanatory Report to Protocol No 14’ para 16.

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the Protocol introduces new filtering mechanisms, allowing the Court to deal more effectively with applications. Two texts are of particular importance since the Court invoked them in its first pilot judgment,83 delivered only a month after the adoption of Protocol No 14:84 In Recommendation Rec(2004)685 the Committee recommended to the Contracting States to review following Court judgments which point to structural or general deficiencies in national law or practice (i.e. to systemic problems86), the effectiveness of the existing domestic remedies and, where necessary, to set up effective remedies, in order to avoid repetitive cases being brought before the Court. In Resolution Res(2004)387 the Committee invited the Court to identify what it considered to be an underlying systemic problem and the source of this problem, in particular when it was likely to give rise to numerous applications, so as to assist states in finding the appropriate solution and to assist the Committee of Ministers in supervising the execution of judgments. Both the Committee’s emphasis of the Contracting States’ obligation to set up effective domestic remedies and its invitation of the Court to identify structural human rights problems have been important steps on the way to the first pilot-judgment procedure. However, the Court’s course of action in its pilot judgments exceeded the Committee’s request in Resolution Res(2004)3, which did not invite the Court to indicate remedial measures to be taken by the respondent State for the execution of the pilot judgment or to adjourn all “clone”-applications.88 5.2 Further Development Considering the delay of the entry into force of Protocol No. 14 due to the refusal of ratification by the Russian Federation, the efforts of upholding the Court’s effectiveness were continued after 2004.89 After the first pilot 83 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 190 et seq. 84 Cf. Popović, ‘Pilot judgments’ 354 et seq; Okresek, ‘Maßnahmen’ 640 and 642. 85 Committee of Ministers, ‘Recommendation on the improvement of domestic remedies’. 86 Cf. Chapter 8.2 (p 37). 87 Committee of Ministers, ‘Resolution on judgments revealing an underlying systemic problem’. 88 Gattini, ‘Claims’ 270 et seq; cf. as to the Court’s competences to order remedial measures and to adjourn the consideration of similar applications Chapters 17 (p 134) and 19 (p 257) below. 89 Cf. Keller, ‘Rechtsschutzeffektivität’ 361.



political context and development29

judgment was delivered, the Parliamentary Assembly has continued its endeavour of actively contributing to the execution process, adopting a further Resolution and a Recommendation in this respect in 200490 and likewise in 2006.91 In Resolution 1516 (2006) the Assembly expressly noted for the first time the continuing existence of major structural deficiencies  in several Contracting States, which would cause large numbers of repetitive findings of violations, and elaborated on the pilot-judgment procedure.92 In 2005 the Heads of State and Government committed to the implementation of all the reform measures adopted by the Committee of Ministers in May 2004, including the ratification of Protocol No. 14. They instructed the Committee to ensure accelerated and full execution of the Court’s judgments, with a particular focus on judgments revealing structural problems.93 In April 2006 the Steering Committee presented draft amendments to the Rules of the Committee of Ministers for applying Article 46 § 2,94 which were adopted by the Committee in May 2006.95 According to Rule 4 the Committee shall give priority to the supervision of execution of judgments in which the Court has identified systemic problems in accordance with Resolution Res(2004)3.96 In a Review of the working methods of the Court, Lord Woolf suggested that the Court should deliver a greater number of pilot judgments and then deal summarily with repetitive cases; cases that are candidates for a pilot judgment should be given priority.97

90 PACE, ‘Implementation of decisions of the Court’ Res(2004)1411 and Rec(2004)1684. Cf. also the Reply to Rec(2004)1684 by the Committee of Ministers of 26 July 2005, Doc 10651, pointing out that collective supervision of the execution of judgments by all member states is a unique responsibility entrusted to it by Article 46. 91 PACE, ‘Implementation of judgments of the Court’ Res(2006)1516 and Rec(2006)1764. Cf. also Committee of Ministers, ‘Reply to Rec(2006)1764’ Doc 11230. Res(2006)1516 contains a comprehensive catalogue of unresolved structural problems in Contracting States at that time. 92 PACE, ‘Resolution—Implementation of judgments of the Court’ (2 October 2006) Res(2006)1516, para 10 and 21. 93 ‘Action Plan of the Heads of State and Government’ CM(2005)80 Final. 94 CDDH, ‘Declaration—Ensuring the effectiveness of the implementation of the Convention’ CDDH(2006)008. 95 ‘Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements’ (10 May 2006) CM/Del/Dec(2006)964/4.4/ appendix4 = CM(2006)90; cf. Okresek, ‘Maßnahmen’ 640. 96 Cf. p 28. 97 The Right Honourable The Lord Woolf, ‘Review of the Working Methods of the Court’ (December 2005); see also Keller, ‘Rechtsschutzeffektivität’ 362.

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After a report of the Ministers’ Deputies on the implementation of the 2004 reform measures,98 the Committee adopted a further declaration on ensuring the effectiveness of the implementation of the Convention in 2006.99 The Group of Wise Persons, established by the Committee of Ministers in 2005,100 encouraged the Court to use the pilot-judgment procedure as often as possible in the future. However, it recommended that time-limits, subject to supervision by the Court, should be laid down to ensure that victims who have already applied to the Court do not have to wait indefinitely for just satisfaction.101 The Court commented on this report, pointing out that further experience in operating the procedure along with an evaluation of its success in assisting States confronted with systemic problems was required, before considering an incorporation of the procedure into the Convention.102 In 2006, the Court adopted its second pilot judgment in the case of Hutten-Czapska v Poland.103 The following years did not bring any decisive developments: In 2007 the Steering Committee pointed to open questions as regards the pilotjudgment procedure, especially the need for a clearer definition and a sharper characterization of cases suitable for it.104 The 118th session of the Committee of Ministers in 2008 was characterized, inter alia, by the on-going effort of ensuring the effectiveness of the Court;105 however, this issue was not on the top of the agenda at the Committee’s session in 2009. In February 2010 the Russian Federation ratified Protocol No. 14, which entered into force in June 2010. Likewise in February 2010, the Interlaken Conference commented, inter alia, on the problem of repetitive applications. It called upon the Contracting States to cooperate with the Com­mittee of Ministers, after a final pilot judgment, in order to adopt and implement general measures capable of remedying effectively the 98 CoM, ‘Report—Ensuring the continued effectiveness of the European Convention’ CM(2006)39 Final. 99 CoM, ‘Declaration—Sustained action to ensure the effectiveness of the Convention’ Decl-19.05.2006. 100 ‘Action Plan of the Heads of State and Government’ CM(2005)80 Final. 101 ‘Report of the Group of Wise Persons to the Committee of Ministers’ para 100 et seq. 102 ECHR, ‘Opinion of the Court on the Wise Persons’ Report’ (2 April 2007) accessed 28 October 2012. 103 Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006). 104 CDDH, ‘Interim report—Sustained action to ensure the effectiveness of the Convention’ CM(2007)53 Final. 105 CDDH, ‘Interim report—Enhancing the control system of the Convention’ CM(2008)51; CDDH, ‘Activity report—Sustained action to ensure the effectiveness of the Convention’ CM(2008)52.



political context and development31

structural problems at the origin of repetitive cases. Furthermore, it stressed the need for the Court to develop clear and predictable standards for the pilot-judgment procedure as regards selection of applications, the procedure to be followed and the treatment of adjourned cases, and to evaluate the effects of applying such and similar procedures.106 Also the Izmir Conference, held in April 2011, commented on the problem of repetitive applications and welcomed, inter alia, the new Rule 61 of the Rules of the Court adopted by the Court on the pilot-judgment procedure.107 In 2012, the Brighton Conference welcomed the continued use by the Court of proactive measures, particularly pilot judgments, to dispose of repetitive violations in an efficient manner. It stated that the Committee should pay particular attention to violations disclosing a systemic issue at national level, and should ensure that Contracting States quickly and effectively implement pilot judgments.

106 ‘High Level Conference on the Future of the European Court of Human Rights— Interlaken Declaration’ accessed 28 October 2012. 107 ‘High Level Conference on the Future of the European Court of Human Rights— Izmir Declaration’ accessed 28 October 2012.

CHAPTER SIX

CONCLUSION It follows from the foregoing that the pilot-judgment procedure was a reaction to structural human rights problems in Contracting States triggering repetitive applications and to several Contracting States’ reluctance to solve those problems on the national level—problems which the Court (and the Strasbourg system in general) had to cope with since decades. The first pilot-judgment was preceded by several judgments containing elements of the later pilot-judgment procedure; partly already as a reaction to repetitive applications, partly in other contexts. In the politi­ cal  pr­ocess of the Council of Europe before the first pilot-judgment procedure, approaches to tackle widespread human rights problem were discussed. The pilot-judgment procedure was also elaborated on comprehensively in the political process of the Council of Europe and within the Committee of Ministers in particular.

PART THREE

ELEMENTS OF THE PILOT-JUDGMENT PROCEDURE

CHAPTER SEVEN

OVERVIEW The aim of the previous chapter was to analyse, from a broad perspective, the judicial and political efforts of the European Court of Human Rights to manage its ever growing workload, focusing in particular on various approaches to cope more effectively with repetitive applications, triggered by structural human rights violations in Contracting States. Among these approaches there is the pilot-judgment procedure of the Court—a concept which cannot be found in the Convention itself.1 Therefore, it is indispensable to identify the constituting elements of the pilot-judgment procedure.

1 It is however stipulated in Rule 61 of the Rules of Court, cf. Chapter 17.4.5 (p 181).

CHAPTER EIGHT

DEFINITIONS 8.1 Repetitive Applications As it was highlighted above, the pilot-judgment procedure is closely linked to the overload of the Strasbourg system caused by a large number of individual applications. In legal doctrine and political documents dealing with the Court’s overwhelming case-load, as well as in the Court’s caselaw itself, it is frequently referred to the term repetitive applications (or analogous terms).2 Also Rule 61 § 1 of the Rules of Court stipulates, as the condition to initiate a pilot-judgment procedure, that the facts of an application reveal in the Contracting State concerned the existence of a structural or systemic problem or other similar dysfunction which has given rise or may give rise to similar applications. Rule 61 does not state which cases are to be considered “similar”. How­ ever, it establishes a connection between repetitive cases and structural or systemic problems (or other similar dysfunctions): The Court may conduct a pilot-judgment procedure if a structural or systemic dysfunction exists—in case this dysfunction (potentially) gives rise to similar applications. There are other sources as well which link repetitive cases to structural or general deficiencies in national law or practice.3 Acting on the presumption that repetitive applications stem from the same (systemic) problem in Contracting States, it may be deduced that cases brought before the Court are to be regarded as repetitive if they complain about a violation of the same Convention right(s) and if they correspond essentially, as regards the factual origins of the respective individual ill-treatment.4 2 Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 234; cf. also Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 83; Witkowska-Toboła v Poland App no 11208/02 (ECtHR, 4 December 2007) para 38; Committee of Ministers, ‘Recommendation on the improvement of domestic remedies’; Council of Europe, ‘Explanatory Report to Protocol No 14’ para 7; cf. Caflisch, ‘Normenkontrolle’ 521; Schmahl, ‘Piloturteile’ 374; cf. Eschment, Musterprozesse 49. 3 Eg. Committee of Ministers, ‘Recommendation on the improvement of domestic remedies’; Council of Europe, ‘Explanatory Report to Protocol No 14’ para 7. 4 Cf. Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 133, where the Court notes that “700 cases concerning similar facts are currently pending”; Greens and

definitions37 In the following, the term repetitive cases shall thus be used to refer to applications which match, in connection with a systemic or structural problem (see below as to these terms), both as regards the Convention right whose violation is being alleged, and as regards, in principle, the factual turn of events which has lead to the alleged violation. 8.2 Systemic Problems The concept of “systemic problems” pervades the Court’s pilot-judgment procedure. The Court defines a systemic problem as a situation where “the facts of the case disclose the existence, within … [the Contracting State’s] legal order, of a shortcoming as a consequence of which a whole class of individuals have been or are still denied … [their Convention rights or freedoms]”.5 On other occasions, the Court used the phrase “structural problems underlying the violations”6 or “practice incompatible with the Convention”.7 Accordingly, the term “systemic problem” is used to refer to human rights problems which reach beyond the applicant’s individual case. The Court stated in several judgments that “the violations found … were neither prompted by an isolated incident, nor attributable to a particular turn of events in this case, but were rather the consequence of regulatory shortcomings and/or administrative conduct of the authorities”.8 According to these statements, a systemic problem exists if the individual applicant’s violation was prompted by deficiencies in the respective Contracting State’s internal legal order; in other words, if the concerned Contracting State has failed to introduce measures which ensure the fulfilment of its obligations according to the Convention.9 This is based on M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 111: “applications in which a similar complaint is made”. 5 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 189; Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 231. 6 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 126; Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 107; Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) para 60. 7 Cf. for instance Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) 4th operative provision; Finger v Bulgaria App no 37346/05 (ECtHR, 10 May 2011) 4th operative provision. 8 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 131; Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 189; Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 229; emphasis added.   9 Cf. the Court’s phrasing in Radio ABC v Austria App no 19736/92 (ECtHR, 20 October 1997) para 37.

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the assumption that, as a rule, international (human rights) treaties need actions of implementation from its signatories in order to be fully and steadily complied with: Unless it is ensured that state organs and/or private individuals act in conformity with the treaty, there may presumably not be comprehensive compliance with the treaty. Therefore, a regulatory deficiency or a continuing administrative conduct of state authorities which lead to violations of the Convention (i.e. “systemic problems”) are occurrences of a Contracting State having failed to fully implement the Convention. If the concerned Contracting State had brought its internal legal order in line with what was required by the Convention, there would not have been sources of repeated similar violations of the Convention from the outset.10 As a further aspect, most pilot judgments were delivered after similar violations of the Convention had already been found in previous judgments.11 Therefore, in those cases, the concerned Contracting States had not only failed to implement the Convention generally, but also, as a specific manifestation of implementation,12 to take general remedial measures after a violation of the Convention was found in a (previous) judgment. Accordingly, systemic problems may also be constituted by deficiencies in the execution of judgments.13 Acting on the assumption that systemic problems are failures of the Contracting States to fully implement the Convention (or to comprehensively execute a judgment finding a violation), it is to be followed that this concept is not inextricably linked to the Court’s pilot judgment approach: Deficiencies in the implementation of the Convention or in the execution of judgments have, as the Court’s previous efforts to deal effectively with such deficiencies imply,14 already existed before the Court’s 10 The question of obligations of the Contracting States to implement the Convention will be discussed in Chapter 12 (p 55).   11 Cf. for instance Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 129: “the present case comes to be considered after some 200 judgments have amply highlighted the non-enforcement problem in Russia”. For instance in Grudić v Serbia App no 31925/08 (ECtHR, 17 April 2012) the Court only invoked a large number of potential applicants, without referring to previous findings of violations in similar cases or to pending applications (para 99). 12 Cf. Chapter 13.3.5 (p 82). 13 This is particularly striking in Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 110: “[The Court] emphasizes that the finding of a violation of [the Convention right in question] was the direct result of the failure of the authorities to introduce measures to ensure compliance with the Grand Chamber’s judgment in Hirst”. 14 Cf. for instance the length of proceedings-cases in Italy, Chapter 4.1 (p 16).

definitions39 judgment in the case of Broniowski. It was only in the pilot-judgment procedure that the Court specifically focused on those deficiencies in the implementation of the Convention; their existence—and their impact on the Court’s docket—were the main incentive for the Court to devise the pilot-judgment procedure.15 As it is implied in the foregoing, the Court has varied the phrasing of its findings of a widespread problem in pilot judgments and spoke either of systemic problems, of structural problems underlying the violation or of practices incompatible with the Convention. It is to be highlighted that, generally speaking, the Court did not draw substantially different consequences from referring to either of those concepts in the context of the pilot-judgment procedure: In all pilot judgments the Court identified the circumstances of those problems and indicated remedial measures. Unlike the notion of a systemic problem, that of a practice incompatible with the Convention had already been used by the Court for a considerable time before the first pilot judgment, and was defined by the Court as an accumulation of identical or analogous breaches which were sufficiently numerous and inter-connected to amount not merely to isolated incidents or exceptions, but to a pattern or system.16 As a last aspect, the Court has continuously applied the pilot-judgment procedure only in case of a (potentially) considerable impact on the Court’s docket as a result of the systemic problem in terms of the number of people affected by the problem,17 the number of applications pending,18 or the number of respective judgments already delivered.19 Con­sidering the origins of the pilot-judgment procedure—the overburdening of the Court—as well as its purpose—resolving most effectively 15 Cf. Chapter 5 (p 24). 16 Eg. Donnelly and Others v The United Kingdom App nos 5577/72 and others (ECtHR, 5 April 1973) para 40; Ireland v The United Kingdom App no 5310/71 (ECtHR, 18 January 1978) para 159; Kurt v Turkey App no 24276/94 (ECtHR, 25 May 1998) para 116 (the Court did not find a practice incompatible with the Convention). 17 Cf. Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 193: “has affected nearly 80,000 people”; Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 235: “might potentially affect an even larger number of individuals”. 18 For instance Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 86: “approximately 1,400 applications against Ukraine … are currently pending”; Dimitrov and Hamanov v Bulgaria App nos 48059/06, 2708/09 (ECtHR, 10 May 2011) para 110: “two hundred cases against Bulgaria awaiting first examination”. 19 For instance Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 83: “delivered judgments in more than 300 cases”; Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 129: “some 200 judgments have amply highlighted the non-enforcement problem in Russia”.

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large numbers of violations—it may be said that a systemic problem or a practice incompatible with the Convention is only present in the context of the pilot-judgment procedure if there is a considerable number of individuals being affected by the respective structural deficiencies.20 However, this understanding appears to be doubtful as far as the notion of systemic problems describes deficiencies in the implementation of the Convention (or in the execution of judgments): Such deficiencies may as well exist without a large number of individuals being affected by them. If such deficiencies in the implementation of the Convention exist, the Contracting State concerned has to resolve them, even if there have not been numerous persons affected by it.21 To sum up, systemic problems (or practices incompatible with the Con­ vention) may be described as occurrences of repeated similar violations of the Convention, which are rooted in deficiencies in the implementation of the Convention or, respectively, in the execution of judgments finding a violation. Furthermore, in the context of its pilot-judgment procedure, the Court took into consideration if the deficiencies affected a considerable number of individuals, and if they were capable of leading to numerous similar applications to the Court in the future.

20 Cf. Garlicki, ‘Broniowski’ 185. 21 Cf. Chapter 13.3.4 (at p 81).

CHAPTER NINE

THE ELEMENTS OF THE PILOT-JUDGMENT PROCEDURE 9.1 Examination of a Systemic Problem The identification of a systemic problem in a pilot judgment has been described as a central element of the pilot-judgment procedure;22 this corresponds with, and is prompted by, the Court’s intention of tackling systemic problems which lead to repetitive applications in its pilot-judgment procedures. As a rule, the Court elaborated on the respective systemic problem in the reasoning of its pilot judgments23 and also established the existence of a systemic problem in the operative part.24 In later pilot judgments the 22 Garlicki, ‘Broniowski’ 185; Caflisch, ‘Normenkontrolle’ 522; Breuer, ‘Urteilsfolgen’ 448; CoM, ‘Resolution on judgments revealing an underlying systemic problem’ (12 May 2004) Res(2004)3. 23 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 189; Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 235 et seq; Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 131 et seq; Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) para 53 et seq; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 83 et seq; Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) para 63; Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) para 64 et seq; Maria Atanasiu and Others v Romania App nos 30767/05, 33800/06 (ECtHR, 12 October 2010) para 219 et seq; Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 110 et seq; Finger v Bulgaria App no 37346/05 (ECtHR, 10 May 2011) para 115 et seq; Dimitrov and Hamanov v Bulgaria App nos 48059/06, 2708/09 (ECtHR, 10 May 2011) para 110 et seq; Ananyev and Others v Russia App nos 42525/07, 60800/08 (ECtHR, 10 January 2012) para 184 et seq; Manushaqe Puto and Others v Albania App nos 604/07 and others (ECtHR, 31 July 2012) para 107 et seq. 24 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) 3rd operative provision; Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) 3rd operative provi­ sion; Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) 5th operative provision; Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) 3rd operative provision; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) 4th operative provisions; Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) 3rd operative provision; Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) 4th operative provision; Finger v Bulgaria App no 37346/05 (ECtHR, 10 May 2011) 4th operative provision; Dimitrov and Hamanov v Bulgaria App nos 48059/06, 2708/09 (ECtHR, 10 May 2011) 5th operative provision. In Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) the Court held that the violation found had originated in the respondent State’s failure to execute a previous judgment (5th operative provision).

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Court elaborated on the systemic problem in the reasoning of its judgment but refrained from including respective findings in the operative part, which could indicate a new approach of the Court as regards express findings on systemic problems in the operative part of pilot judgments.25 In Grudić the Court did not establish a systemic problem altogether, neither in the reasoning nor in the operative part of its judgment, and merely determined remedial measures to be taken by the respondent State.26 Also in Vučković the Court particularly succinctly indicated the existence of a systemic problem.27 Two approaches of the Court when assessing and establishing a systemic problem can be distinguished: On the one hand, the Court established the existence of a systemic problem with reference to circumstances which indicated the existence of a widespread human rights problem. In those cases the Court pointed out that similar violations of the Convention had occupied the Court already in the past and that the concerned Contracting State had not taken sufficient steps to prevent further occurrences of analogous violations.28 From this, the Court concluded that there existed an underlying systemic problem or a practice incompatible with the Convention. Supplementary, the Court invoked statements of national or international organs which also pointed to the respective widespread problems.29 In this context, the Court also examined the extent of the problem in terms of the number of persons being affected by it on the national level, or the number of analogous applications pending before the Court.30 Therefore, the Court based its finding that there

25 Maria Atanasiu and Others v Romania App nos 30767/05, 33800/06 (ECtHR, 12 October 2010); Ananyev and Others v Russia App nos 42525/07, 60800/08 (ECtHR, 10 January 2012); Manushaqe Puto and Others v Albania App nos 604/07 and others (ECtHR, 31 July 2012). 26 Grudić v Serbia App no 31925/08 (ECtHR, 17 April 2012). 27 Vučković and Others v Serbia App no 17153/11 (ECtHR, 28 August 2012). 28 Cf. as regards repeated findings of an excessive length of domestic court decisions Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) para 64 et seq; cf. as regards repeated non-enforcement of domestic court decisions Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) para 40. 29 Eg. Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 39 et seq. (cf. also para 132), referring to resolutions and observations by the Committee, the Parliamentary Assembly and the United Nations; Ananyev and Others v Russia App nos 42525/07, 60800/08 (ECtHR, 10 January 2012) para 186, referring to a Resolution of the Parliamentary Assembly. 30 Eg. Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 193; HuttenCzapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 235; Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 129 et seq; Olaru and Others v Moldova



the elements of the pilot-judgment procedure43

existed a structural problem on circumstances which indicated that the Contracting State’s domestic legal order was in some way in conflict with the Convention. This is particularly obvious in Rumpf, where the Court solely referred to its previous repetitive case-law in order to establish the existence of a systemic problem, without focusing on the origin of those repetitive cases in the respondent State’s legal order.31 On the other hand, there are also pilot judgments in which the Court’s findings of a systemic problem or a practice incompatible with the Convention were not only based on the existence of previous judgments finding similar violations. In these cases the Court did not only refer to facts which indicated the existence of a widespread problem, but it rather focused on and examined the roots or causes of repetitive cases in the respondent State’s domestic legal order; it identified the internal mechanisms which had prompted or allowed those individual violations to occur, and which amounted to failures to fully implement the Convention of the respective Contracting State.32 Therefore, the Court’s findings in these judgments were more than a conclusion of what had repeatedly been elaborated on on the national or Strasbourg level or of what had become obvious by way of other sources on the international level. 9.2 Determination of Remedial Measures The Court has repeatedly stated that the object of designating a case for a pilot-judgment procedure was to facilitate the speediest and most effective resolution of a dysfunction affecting the protection of a

App nos 476/07 and others (ECtHR, 28 July 2009) para 53; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 83 and 86; Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) para 63; Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) para 64 et seq; Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 111. 31 Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) para 64–70. 32 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 189; Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 235 et seq; Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 131; rather extensive in Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) para 54–57; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 84; Maria Atanasiu and Others v Romania App nos 30767/05, 33800/06 (ECtHR, 12 October 2010) para 219–228. As was concluded above, structural problems may be described as failures of Contracting States to implement the Convention, thus to bring their domestic legal order in line with it (Chapter 8.2, p 37).

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Convention right in the national legal order.33 Furthermore, it is one of the declared purposes of the pilot-judgment procedure to “assist” the respondent State in the process of executing the Court’s judgments, with a view to resolve an underlying structural problem,34 or to “induce” the respondent State to resolve large numbers of individual cases on the national level.35 The purpose behind these approaches is the implementation of the principle of subsidiarity,36 as it was already indicated by the Court in Kudła v Poland.37 These basic circumstances are broadly acknowledged in legal doctrine and in the political sphere of the Council of Europe.38 In accordance with this purpose of the pilot-judgment procedure, the Court—as it was practised in Assanidze v Georgia39 with respect to individual measures—elaborates on general measures which the Court deems necessary for resolving the systemic problem and for putting the respondent State’s legal order in line with requirements of the Convention.40

33 Eg. Wolkenberg and Others v Poland App no 50003/99 (ECtHR, 4 December 2007) para 34; Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 127; Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) para 51. 34 As it was phrased in the earlier pilot judgments: Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 194; Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 234. 35 Eg. Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 127; Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) para 51; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 82. 36 Cf. Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 127; Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) para 51. 37 Cf. Chapter 4.2 (p 19 above). 38 Okresek, ‘Maßnahmen’ 641; Schmahl, ‘Piloturteile’ 374 et seq; Gattini, ‘Claims’ 279; Keller, Bertschi, ‘Erfolgspotential’ 209; Steering Committee for Human Rights, ‘Guaranteeing the long-term effectiveness’ Proposal A.1.b. 39 Cf. Chapter 4.3 (p 21 above); cf. furthermore Schmahl, ‘Piloturteile’ 374 and Breuer, ‘Urteilsfolgen’ 445 and 448. 40 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 194; Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 238 et seq; Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 136; Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) para 58; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 89 et seq; Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) para 64; Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) para 71 et seq; Maria Atanasiu and Others v Romania App nos 30767/05, 33800/06 (ECtHR, 12 October 2010) para 229 et seq; Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 113 et seq; Finger v Bulgaria App no 37346/05 (ECtHR, 10 May 2011) para 129 et seq; Dimitrov and Hamanov v Bulgaria App nos 48059/06, 2708/09 (ECtHR, 10 May 2011) para 124 et seq; Ananyev and Others v Russia App nos 42525/07, 60800/08 (ECtHR, 10 January 2012) para 191 et seq; particularly succinctly in Grudić v Serbia App no 31925/08 (ECtHR, 17 April 2012) para 99. Cf. also Breuer, ‘Individualbeschwerde’ 121; Schmahl, ‘Piloturteile’ 374 et seq; Garlicki, ‘Broniowski’ 185; Caflisch, ‘Normenkontrolle’ 522; Breuer, ‘Urteilsfolgen’ 448.



the elements of the pilot-judgment procedure45

Beyond that, the Court included determinations of those general remedial measures in an imperative phrasing (“the respondent State must …”) in the operative part of its pilot judgments.41 The Court also set a time limit for the execution of the pilot judgment—either by requesting the respondent State to take the necessary measures within “a reasonable time”,42 or by setting a concrete deadline (six months,43 one year,44 18 months45).46 The Court’s orders vary considerably as regards their content and the result to be achieved by the respondent State, which will be further ana­ lysed in Chapters 14 (p 86) and 17.5 (p 193). 9.3 Adjournment of Proceedings Another aspect of the pilot-judgment procedure is the adjournment of the examination of parallel applications, while awaiting the respondent State’s implementation of the Court’s orders, i.e. the execution of the

41 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) 4th operative provision; Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) 4th operative provi­ sion;  Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) 6th operative provision; Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) 4th operative provision; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) 5th operative provision; Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) 4th operative provision; Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) 5th operative provision; Maria Atanasiu and Others v Romania App nos 30767/05, 33800/06 (ECtHR, 12 October 2010) 6th operative provision; Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) 6th operative provision; Finger v Bulgaria App no 37346/05 (ECtHR, 10 May 2011) 5th operative provision; Dimitrov and Hamanov v Bulgaria App nos 48059/06, 2708/09 (ECtHR, 10 May  2011) 6th operative provision; Ananyev and Others v Russia App nos 42525/07, 60800/08 (ECtHR, 10 January 2012) 7th operative provision; Grudić v Serbia App no 31925/08 (ECtHR, 17 April 2012) 3rd operative provision; cf. Haidenhofer, ‘Umsetzung’ 808. 42 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 198; Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 247. 43 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) 6th operative provision; Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) 4th operative provision. 44 Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) 5th operative provision; Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) 5th operative provision; Finger v Bulgaria App no 37346/05 (ECtHR, 10 May 2011) 5th operative provision; Dimitrov and Hamanov v Bulgaria App nos 48059/06, 2708/09 (ECtHR, 10 May 2011) 6th operative provision. 45 Maria Atanasiu and Others v Romania App nos 30767/05, 33800/06 (ECtHR, 12 October 2010) 6th operative provision. 46 This aspect is emphasised by Breuer, ‘Piloturteilstechnik’ 6.

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pilot judgment.47 This element is as well in line with the purpose of the pilot-judgment procedure: By adjourning all pending applications, the Court postpones the time-consuming examination with a view to a solution of the underlying problem at national level.48 Of all elements described so far, there is fewest consensus concerning the assertion that the adjournment of all “clone”-applications is an essential element of the pilot-judgment procedure. According to D. Popović, “the very essence of the pilot judgment technique lies in the adjournment of proceedings”.49 L. Wildhaber considers the adjournment of proceedings to be an “important element”.50 Also M. Breuer includes this aspect in his description of the procedure,51 while L. Garlicki52 as well as P. Leach, H. Hardman and S. Stephenson53 do not. According to J. Darcy, the adjournment of proceedings is not “absolutely essential”.54 It seems that the Court does not regard the adjournment of all similar proceedings to be indispensable. When elaborating on “the adjudicative approach … to systemic or structural violations [which] has been described as a ‘pilot-judgment procedure’” in several cases, the Court did not include the adjournment of “clone”-applications in its description.55 In these cases, adjournment was simply announced later in the same pilot judgment56 or referred to in a friendly settlement-decision when summarizing the previous procedural steps the Court took in the respective proceedings.57 Furthermore, the Court has used this instrument rather flexibly:

47 Schmahl, ‘Piloturteile’ 374 et seq; Breuer, ‘Urteilsfolgen’ 121. 48 Cf. Breuer, ‘Urteilsfolgen’ 450. 49 Popović, ‘Pilot judgments’ 355 et seq. 50 Wildhaber, ‘Consequences’ 61; similarly Fyrnys, ‘Pilot Judgments’ 1257; also Judge Zagrebelsky highlights adjournment of similar proceedings as an important element: Partly Dissenting Opinion to Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006). 51 Breuer, ‘Individualbeschwerde’ 121. 52 Garlicki, ‘Broniowski’ 185 and 190. 53 Leach, Hardman, Stephenson, ‘Pilot Judgment Procedure’ 351. 54 John Darcy, ‘Pilot judgments from the perspective of the Court and possible elements of the pilot judgment procedure which could be drafted’ in Pilot Judgment Procedure in the European Court of Human Rights. 3rd Informal Seminar for Government Agents and other Institutions (Kontrast 2009) 36, 39. 55 Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005) para 34; Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 231– 234; cf. also Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 80. 56 Eg. Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 247. 57 Eg. Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005) para 35.



the elements of the pilot-judgment procedure47

In several pilot judgments the Court only adjourned those proceedings which were lodged after the delivery of the pilot judgment.58 In other pilot judgments the Court did not adjourn proceedings at all.59 In Broniowski and Hutten-Czapska, the Court adjourned proceedings comprehensively.60 9.4 Procedural Steps after a Pilot-Judgment In several pilot judgments the Court did not consider its task to be fulfilled with the adoption of the pilot judgment. Instead, it examined general remedial measures envisaged or already taken by the Contract­ ing  State in several judgments on friendly settlements reached by the “pilot”-applicant and the respondent State.61 Secondly, once the Contract­ ing State concerned had installed a domestic remedy for persons concerned by a systemic problem which had been highlighted in a pilot judgment, the Court examined if this remedy provided adequate and sufficient redress towards the persons concerned and, if it answered this question in the affirmative, considered those applications to have been resolved according to Article 37 § 1 (b) and struck them out of its list of cases.62

58 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 143; cf. also Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) para 60 et seq; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 97. 59 Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) para 75; Finger v Bulgaria App no 37346/05 (ECtHR, 10 May 2011) para 135; Dimitrov and Hamanov v Bulgaria App nos 48059/06, 2708/09 (ECtHR, 10 May 2011) para 133. 60 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 198; Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) 247. 61 Eg. Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005); Hutten-Czapska v Poland (friendly settlement) App no 35014/97 (ECtHR, 28 April 2008). In other friendly settlement judgments between the “pilot”-applicant and the respondent State, the Court did not focus on general remedial measures at all, cf. for instance Lungu v Moldova App no 17911/08 (ECtHR, 6 April 2010) with respect to the pilot judgment in the case of Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009). 62 With respect to the Broniowski-pilot judgment procedure: Wolkenberg and Others v Poland App no 50003/99 (ECtHR, 4 December 2007) para 34–36 and 77; Witkowska-Toboła v Poland App no 11208/02 (ECtHR, 4 December 2007) para 79. With respect to the HuttenCzapska-pilot judgment procedure: The Association of Real Property Owners in Łódź v Poland App no 3485/02 (ECtHR, 8 March 2011) para 88–90.

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chapter nine 9.5 Conferral to the Grand Chamber?

In legal doctrine it has been discussed if the conferral of a case dealing with systemic problems to the Grand Chamber was another key element of the pilot-judgment procedure.63 In other words, it has been asked if only the Grand Chamber shall deliver pilot judgments. When considering the elements of the pilot-judgment procedure from an empirical point of view, it is to be highlighted that a considerable number of pilot judgments were delivered by a Chamber, rather then by the Grand Chamber.64 Considering this, the conferral of cases to the Grand Chamber will not be regarded as a characteristic of the pilot-judgment procedure for the sake of this examination.

63 Eg. Breuer, ‘Piloturteilstechnik’ 4. 64 Eg. Lukenda v Slovenia App no 23032/02 (ECtHR, 6 October 2005); Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009); Olaru v Moldova App no 476/07 (ECtHR, 12 October 2010); Ananyev and Others v Russia App nos 42525/07, 60800/08 (ECtHR, 10 January 2012).

CHAPTER TEN

CONCLUSION Focusing on the Court’s conception, the pilot-judgment procedure is a judicial approach by the European Court of Human Rights aiming at a speedy resolution of structural problems in a Contracting State, in order to avoid large numbers of repetitive applications being brought before the Court. To this end, the Court identifies a systemic problem or a practice incompatible with the Convention in the respective Contracting State’s legal order in a pilot judgment and indicates specific general measures to be taken by the respondent State in order to resolve the underlying problem. Additionally, the Court may adjourn the consideration of similar pending applications while awaiting the adoption of the prescribed general measures by the respondent State, and strike those applications out of its list once an effective domestic remedy has been installed. Several judgments of the Court feature all these elements and can undoubtedly be considered pilot judgments; if the Court also examines general remedial measures taken by the respondent State after the pilot judgment with a view to striking applications out of its list, the Court has undoubtedly conducted pilot-judgment procedures. However, there are several judgments which feature several, but not all elements as just indicated. In fact, if one aims at examining the compatibility of the pilotjudgment procedure with the Convention, it is indispensable if a particular judgment may be labelled “pilot judgment”. Instead, judicial approaches of the Court may also be examined as regards their conformity with the Convention when taken for themselves, thus irrespective of whether also other typical pilot judgment-elements are present in a particular case. Nevertheless, for the sake of a clear terminology, judgments of the Court will be considered pilot judgments, first, if it emerges from the judgment that it is a response of the Court to a systemic problem or a practice incompatible with the Convention and, secondly, if the Court includes a determination of general remedial obligations of the respondent State in the operative part of the judgment.

PART FOUR

THE CONTRACTING STATES’ OBLIGATIONS UNDER THE CONVENTION

CHAPTER ELEVEN

OVERVIEW Since the first pilot judgment in the case of Broniowski, the Court has established in the operative part of several judgments that the violation of the Convention found in the respective individual applicant’s case originated in a “systemic problem”1 or a “practice incompatible with the Con­ vention”2 in the respective Contracting State’s legal order. By this finding the Court made clear that the violation found was not only the result of a particular turn of events affecting solely the respective applicant,3 but that it had broader implications reaching beyond the scope of an individual case. This was also indicated by a considerable number of applicants alleging that they had been victims of similar violations of the Convention.4 As has been said, instances of numerous applicants, claiming to be the victims of analogous violations of the Convention, appear to point to deficiencies in the implementation of the Convention in the concerned Contracting State: If the Contracting State had adjusted its domestic legal system to the requirements deriving from the Convention, there would not have been repetitive violations of the Convention.5 Vice versa, if a Contracting State’s legal order is shaped in a way which leads to measures incompatible with the Convention in individual cases, it may be concluded that the concerned Contracting State has failed to bring its internal legal system in line with the rights and freedoms enshrined in the Convention, thus that it has failed to fully implement the Convention on national level. Thus, the pilot-judgment procedure may be described as a 1 Cf. the operative provisions in Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004); Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006); and Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009). 2 Cf. the operative provisions in Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009); Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009); Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010). 3 Cf. Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 189; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 88; Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) para 70. 4 Cf. only Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 193. 5 Cf. Mahoney, ‘Reparation’ 269, who notes that excessive numbers of incoming applications was a political problem prompted by the systematic non-implementation of the Convention in national legal systems.

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reaction to the failure of Contracting States to fully implement the Convention. However, a large number of persons affected by analogous ill-treatments merely indicates, from an empirical perspective, that the concerned Contracting State has failed to bring its internal legal system in line with the Convention, which leaves the question to be answered as to corresponding obligations to do so.6 This in turn implies the question if the Contracting States violate the Convention by not eliminating structural deficiencies in their domestic legal order, thus by tolerating sources of repeated violations of the Convention. Considering this, it is first to be examined which obligations of the Contracting States derive from the Convention regarding the implementation of the same—as a fundamental question at the basis of the pilot-judgment procedure, and as an aspect of the legitimacy of the pilot-judgment approach: If deficiencies in the implementation of the Convention amount to a violation of the latter, this will reinforce the legitimacy of the Court’s approach of implementing pilot-judgment procedures. Furthermore, several pilot judgments have been preceded by judgments of the Court finding violations similar to those present in the pilot case.7 From this perspective, the systemic problems identified in these pilot judgments may not only be regarded as failures to implement the Convention, but also as failures to remedy deficiencies once they have become manifest in a judgment finding a violation, thus as failures to execute judgments. Considering this, it is also to be examined which obligations derive from judgments finding a violation; in particular, if the Contracting States are obliged to remedy structural deficiencies which have been revealed by a judgment of the Court. Therefore, it is to be examined which obligations arise from a judgment finding a violation of the Convention—as a basis for the further examination and as an aspect of the Court’s legitimacy for the monitoring of compliance with these obligations in pilot judgments. In the following, it will be assessed which obligations to implement the Convention exist—in general (Chapter 12) as well as after a judgment finding a violation (Chapter 13). Thereupon, it will be examined if the remedial obligations identified by the Court in the pilot judgments correspond with the set of obligations which derive from the Convention; i.e. it will be examined if the Court adopted a new approach to redress in its pilot judgments (Chapter 14). 6 Kadelbach, ‘Incorporation’ 81. 7 Eg. Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 83; cf. Chapter 13.4 (p 83 below).

CHAPTER TWELVE

OBLIGATION TO IMPLEMENT THE CONVENTION 12.1 Public International Law As a rule, obligations in public international law (the Convention being a part of the latter) exist towards legal entities of international law, which are responsible for their adherence (in the present context this concerns primarily states8).9 Since states, as being bound by international obligations, cannot act for themselves but only through humans,10 they are only able to comply with their obligations by entrusting national state organs with the required tasks or by imposing sanctions for acts of individuals being in conflict with international obligations.11 First of all, this may be done by enacting corresponding acts of national legislation.12 In principle, the manner of domestic implementation lies within the states’ discretion and is thus a matter of national law.13 Provisions of public international law on the law of treaties and on state responsibility appear not to contain express duties of the signatories to an international treaty to adapt their internal legal order to treaty obligations, but merely the duty to fulfil the obligations deriving from the treaty: Article 26 of the Vienna Convention stipulates that every treaty in force is binding upon the signatories and must be performed by them in good faith14—which may be interpreted as obliging the signatories to take all 8 Cf. Article 59. 9 Cf. Article 1 of the Draft Articles. 10 Cf. Verdross, Simma, Völkerrecht 37. 11 Walter, Mayer, Kucsko-Stadlmayer, Bundesverfassungsrecht 111; Verdross, Simma, Völkerrecht 37. 12 Verdross, Simma, Völkerrecht 37. 13 Verdross, Simma, Völkerrecht 538 et seq. 14 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 [Vienna Convention]. According to the Court, the Conven­ tion must be interpreted in the light of the rules set out in the Vienna Convention (especially in its Articles 31 to 33), thus as far as possible consistently with the other principles of international law of which it forms a part, despite an exclusion of retroactive effect in Article 4 of the Vienna Convention (cf. Golder v The United Kingdom App no 4451/70 [ECtHR, 21 February 1975] para 29; Mamatkulov and Askarov v Turkey App nos 46827/99, 46951/99 [ECtHR, 4 February 2005] para 111; Cremer, ‘Konventionsinterpretation’ 163; Matscher, ‘Interpretation’ 65). Apart from that, Article 26 of the Vienna Convention reflects a basic principle of international treaty law and is also applicable to treaties which lie outside the scope of the Vienna Convention (Villiger, Vienna Convention 368 with further references).

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necessary internal steps to make sure that the treaty is adhered to, although this understanding is not expressly stipulated. According to Article 27 of the Vienna Convention, a signatory to a treaty may not invoke provisions of its internal law as justification for its failure to perform a treaty. The effective application of this provision has been said to oblige states to ensure that their whole internal legislation was compatible or brought in line with its international obligations.15 According to Article 12 of the Draft Articles, a breach of an international obligation exists when an act of a state is not in conformity with what is required of it by the obligation, regardless of its origin or character—which thus only refers back to the respective treaty without stipulating concrete obligations. As regards the nature of international obligations, in legal doctrine it is emphasised that, as a principle, international treaties create obligations concerning the result of their implementation, while leaving the choice of means to the respective signatory.16 However, this principle does not answer the question how the “result” is to be defined: As the conformity of the whole domestic legal order with the requirements of a treaty; or merely as the absence of a violation of a treaty in individual cases (i.e. the absence of human rights violations17). If the former understanding was true, there would be a concrete obligation to adapt the internal system to a treaty (while again leaving the choice of means to achieve this con­ formity to the signatories, thus the choice if this is done, for instance, by way of constitutional amendments or merely by statutory law etc.).18 Furthermore, this would imply that a signatory’s failure to adapt the internal system to the treaty constitutes a violation of the treaty by itself, even if, for instance, a national legal provision which contradicts the treaty obligations has actually never been applied. In contrast, as a result of the latter understanding, international obligations would blank out the internal situation in the signatories which would then not be obliged to adapt their domestic legal order to the demands of the treaty by law. They would only be obliged not to, for instance, treat individuals contrary to the obligations of a human rights treaty. It would follow that a treaty was not violated by a 15 Villiger, Vienna Convention 372. 16 Bleckmann, ‘Gemeinschaftstreue’ 483; Bernhardt, ‘Convention’ 25; Nowak, Covenant 57; Seibert-Fohr, ‘Überführung’ 391; Giegerich, ‘Wirkung’ 65. 17 Cf. Giegerich, ‘Wirkung’ 65; cf. Nowak, Covenant 57 (“the result of implementation, i.e. the respect for an assurance of the rights of the convention.”). 18 Eg. Bernhardt, ‘Convention’ 25: “… requires that the parties guarantee a certain result—the conformity of their domestic law and practice with the conventional duties …”).



obligation to implement the convention57

non-conforming internal situation in a contracting state in abstracto, but only by the concrete application of those legal or extra-legal structures. Apart from that, treaties may contain explicit obligations of conduct regarding the implementation of a treaty.19 According to Article 2 ICCPR,20 each signatory to it undertakes to respect and to ensure the rights recognized therein to all individuals; where not already provided for by existing legislative or other measures, the signatories commit themselves to take the necessary steps, or other measures, to adopt such laws as may be necessary to give effect to the rights recognized in the Covenant.21 Similarly, Article 2 CAT provides that each signatory shall take effective legislative, administrative, judicial or other measures to prevent acts of torture.22 However, the existence of such clauses does not necessarily prove that treaties without an express duty to take certain steps of implementation do not require the signatories to adapt their internal system to the treaty requirements: Stipulations of that kind could be a mere emphasis of an obligation which would equally exist otherwise, or might prescribe a particular way of implementing a treaty.23 In this context, in the Exchange of Greek and Turkish Populations-case, the PCIJ had to elaborate on the obligations deriving from the Lausanne Convention,24 Article 18 of which reads: “The High Contracting Parties undertake to introduce in their respective laws such modifications as may be necessary with a view to ensuring the execution of the present Convention.” The PCIJ stated that this clause merely laid stress on a principle which was self-evident, according to which a state which had contracted valid international obligations

19 For instance Article 8 of the State Treaty for the re-establishment of an independent and democratic Austria (adopted 15 May 1955, entered into force 27 July 1955) 217 UNTS 2949; Verdross, Simma, Völkerrecht 540. 20 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR). 21 Cf. the similar stipulation in Article 4 § 3 of the Treaty on European Union (“The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties …”); Bleckmann (‘Gemeinschaftstreue’ 483) highlighted that the obligations stipulated by this provision went beyond the general obligations in public international law. 22 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85. 23 Cf. again Verdross, Simma, Völkerrecht 540. 24 Convention Concerning the Exchange of Greek and Turkish Populations (adopted 30 January 1923, entered into force 6 August 1924) accessed 28 October 2012.

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was bound to make such modifications in its legislation as may be necessary to ensure the fulfilment of the obligations undertaken.25 In my opinion, it is to be derived from Articles 26 and 27 of the Vienna Convention that the signatories to an international treaty are obliged to modify their internal governmental structures, and in particular their domestic legislation, as far as it is necessary to comply with the obligations deriving from the respective treaty—only by doing so, a treaty can be performed by the signatories. Thus, the result to be achieved is not only the absence of concrete acts by state organs which are contrary to the treaty, but the conformity of the internal structures with the requirements of the treaty, so that comprehensive compliance is ensured. However, in pursuing this result the signatories are, in principle, free to choose the means they deem necessary26—unless a treaty contains obligations to take specific steps of implementation.27 As far as express obligations to implement a treaty are phrased in general terms (as it is for instance the case in Article 2 ICCPR28), the PCIJ’s opinion is to be concurred with: In principle, it is true that the obligation to adapt the internal legal order to the requirements of a treaty exists also without an express stipulation. In any case, it is to be doubted that concrete obligations of conduct can be derived from a provision which obliges the signatories in general terms to take all necessary steps to ensure fulfilment of the treaty. Such stipulations mainly lay emphasis on the principal rule as deriving in particular from Articles 26 and 27 of the Vienna Convention, according to which international treaties bind its signatories to implement the treaty in their internal legal order. 12.2 The Convention The Convention is an international treaty which is to be interpreted in accordance with the rules of interpretation of public international law.29 In the light of the foregoing, the Convention is also to be understood as 25 PCIJ, Exchange of Greek and Turkish Populations (Advisory Opinion) 20; cf. Verdross, Simma, Völkerrecht 540; apparently of a different view (in the context of the TEU) is Bleckmann, ‘Gemeinschaftstreue’ 483. 26 Cf. Bleckmann, ‘Gemeinschaftstreue’ 483; Bernhardt, ‘Convention’ 25; Nowak, Cove­ nant 57; Seibert-Fohr, ‘Überführung’ 391; Giegerich, ‘Wirkung’ 65. 27 Cf. n 19 (p 57) above. 28 Cf. at n 20 (p 57) above. 29 Cf. n 14 (p 55) as regards the applicability of the Vienna Convention in case of the Convention.



obligation to implement the convention59

creating obligations towards the Contracting States to implement it in their domestic legal orders, thus to take all necessary measures at domestic level to make sure that the rights of the Convention are adhered to. An initial indication of this obligation may be said to be inherent in Article 1, according to which the Contracting States shall secure to everyone within their jurisdiction the rights and freedoms defined in the Convention. The wording of this provision suggests that Contracting States are obliged to ensure adherence to all rights and freedoms; it suggests an obligation of the Contracting States not only to abstain from treating individuals contrary to the Convention in any given case, but to adjust their domestic legal system in a way which ensures that no ill-treatments of individuals occur.30 A duty to “secure to everyone” certain human rights can only be understood as obliging the Contracting States to take the required steps to ensure that the rights of the Convention are not violated. An obligation to make certain that human rights are not violated a priori requires the internal legal structures to be brought in line with the requirements of the Convention. This understanding is supported by Article 52, which lays down the Contracting States’ duty to furnish an explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of the Convention. This obligation is only comprehensible if the Contracting States do not merely have to secure that nobody is treated contrary to the Convention, but if they undertook to comprehensively adapt their whole internal legal order to the Convention.31 Also Article 57, which governs reservations to the Convention, is to be considered as an indication of this obligation: If a reservation is necessary in order to avoid that a “law … in force” in the territory of a Contracting State constitutes a violation of the Convention,32 this implies that without a reservation, the concerned Contracting State is under the obligation to adapt this law to the Convention requirements. This point of view is furthermore supported by the travaux préparatoires to the Convention, which may be referred to as a supplementary means of interpretation of the Convention:33 In the Conference of Senior 30 Cf. the Court in Winterwerp v The Netherlands App no 6301/73 (ECtHR, 27 November 1981) para 45 and in X v The United Kingdom App no 7215/75 (ECtHR, 5 November 1981) para 41: “certainly, the domestic law itself must be in conformity with the Convention, including the general principles expressed or implied therein”. 31 Likewise Ress, ‘Wirkung’ 233; Petzold, ‘Subsidiarity’ 46. 32 Cf. Grabenwarter, Pabel, Menschenrechtskonvention 8 et seq. 33 Cf. as to the relevance of the travaux préparatoires Chapter 17.4.7.1 (p 189).

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Officials on Human Rights it was discussed whether the Convention should contain an express provision that domestic legislation should have been brought into line with the Convention at the time of ratification.34 In its Report to the Committee of Ministers, the Conference of Senior Officials included a “Solemn declaration by which the internal laws of the High Contracting Parties shall give full effect to the provisions of the Convention”. There, the Conference “considered unanimously that it was useless to insert into the Convention a provision of this kind (which obliges the Contracting States to bring domestic legislation in line with the Convention before ratification, author’s remark). Indeed, in the absence of any provision to the contrary, every signatory State is presumed to give full effect to the provisions of the Convention from the moment the State has given its adherence.”35 As was pointed out above,36 this point of view is not weakened by the lack of an explicit stipulation of the Contracting States’ obligation in the Convention to take all required steps of fulfilment, as laid down for instance in Article 2 § 2 ICCPR.37 True, the latter provision emphasises this obligation particularly clearly; however, it is only an explication of what follows equally from an obligation to ensure human rights as deriving from Article 1 of the Convention. This provision can only be understood as obliging the Contracting States to “take the necessary steps … to give effect to the rights” of the Convention.38 If they fail to take those steps, they will not be able to ensure the rights of the Convention. Likewise, the Court’s repeated pronouncement that it was not competent to examine national legislation in the abstract39 is not a consequence of the Contracting States’ internal legislation lying outside the scope of their obligations. It rather derives from limitations of the Court’s powers, when examining individual applications according to Article 34, and does not rule out that national legislation, which is contrary to the Convention requirements, constitutes a breach of the latter. Furthermore, it is established (in public international law as well as in the Convention) that it is not only the Contracting States as entities of 34 Collected Edition Vol. IV, 170 et seq. 35 Collected Edition Vol. IV, 256. 36 Chapter 12.1 (p 55). 37 “[W]here not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps … to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant“. 38 Cf. the wording of Article 2 § 2 ICCPR. 39 Cf. Chapter 16.2 (p 107).



obligation to implement the convention61

public international law which are bound by the Convention,40 but rather all branches of national government.41 True, responsibility for violations of the Convention concerns the Contracting States as a whole. However, violating acts of any branch of government are attributable to the Contracting States,42 which may thus be held responsible for undue acts of any branch of government. This involves first of all the legislative branch. It is assumed that the Contracting States have to adapt their whole legislation to the requirements of the Convention, thus they have to make sure that their whole legal order is in conformity with the demands deriving from it.43 This means that the Contracting States have to refrain from the adoption of laws which introduce, direct or authorise measures incompatible with the rights and freedoms safeguarded by the Convention44—thus, the Con­ tracting States have to secure any individual’s rights by abstaining from interfering by way of domestic legislation. There are also indications for this point of view in the travaux préparatoires to the Convention:45 In its letter to the Committee of Ministers, the Committee on Legal and Admin­ istrative Questions “is glad to note that the Conference of Senior Officials did not retain the definition of the Court’s competence, by which the Committee of Experts had tried to exclude from this competence violations resulting from legislative action—a limitation which the Committee would have considered unacceptable” (author’s emphasis).46 Partly, the Convention obliges the Contracting States not only to refrain from enacting interfering legislation, but also to adopt legislation in order 40 Röben, ‘Grundrechtsberechtigte’ 244; Grabenwarter, Pabel, Menschenrechtskonven­ tion 103. 41 Röben, ‘Grundrechtsberechtigte’ 246; cf also Grabenwarter, Pabel, Menschenrechts­ konvention 114; Tomuschat, ‘Breach’ 320. 42 Frowein, Peukert, Menschenrechtskonvention 20. 43 Polakiewicz, Verpflichtungen 164; Leuprecht, ‘Execution’ 792; Ress, ‘Wirkung’ 233; Petzold, ‘Subsidiarity’ 44; cf. Ireland v The United Kingdom App no 5310/71 (ECtHR, 18 January 1978) para 240; Winterwerp v The Netherlands App no 6301/73 (ECtHR, 27 November 1981) para 45 and X v The United Kingdom App no 7215/75 (ECtHR, 5 November 1981) para 41 (cf. n 30 [p 59] above); Scoppola v Italy (No 2) App no 10249/03 (ECtHR, 17 September 2009) 152; Maestri v Italy App no 39748/98 (ECtHR, 17 February 2004) para 47; M and Others v Bulgaria App no 41416/08 (ECtHR, 26 July 2011) para 135. 44 Cf. Ireland v The United Kingdom App no 5310/71 (ECtHR, 18 January 1978) para 240. Cf. also the Report of the Commission in the Albert and Le Compte case, where the Commission stated that it “accordingly considers that the system existing under Belgian law in itself violates the principle of publicity embodied in Article 6 para. 1” (cited by Frowein, Villiger, ‘Report’ 51, emphasis added). 45 Cf. as to the relevance of the travaux préparatoires Chapter 17.4.7.1 (p 189). 46 Collected Edition Vol. V, 38.

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to make sure that human rights are not interfered with by state organs. This is expressly laid down with regard to the right to life in Article 2, according to which everyone’s right to life shall be protected by law; a provision which also aims at securing non-interference from the side of the state.47 In my opinion, the explicit stipulation of this obligation in Article 2 only reflects the fundamental importance of the right to life;48 however, it does not state in reverse that proactive legislative measures, aiming at effectively securing non-interference by state actors, were not required with respect to other guarantees of the Convention. The obligations deriving from the Convention also bind the administrative and judicial branch.49 This implies that the administrative authorities and the courts must not treat individuals contrary to the Convention. Generally, thus detached from specific branches of national government, it is argued, with respect to procedural rights of the Convention, that the Contracting States have to organise their internal system in a way which ensures adherence to those guarantees.50 Accordingly, the Court has stated in the context of the right to a hearing within a reasonable time that the Contracting States are obliged to organise their legal systems in order to allow the courts to comply with this requirement.51 This understanding implies that the Contracting States are not only obliged to refrain from the adoption of legislation and administrative or judicial practices which are contrary to the Convention (thus, to abstain from actively interfering with individual’s rights), but also to make arrangements in order to ensure adherence to the rights of the Convention. This implies that the Contracting States must take all necessary steps to give effect to the rights of the Convention. From Article 1 it could be followed that this aspect was not only relevant in the context of procedural guarantees. Certainly, these rights require most apparently organisational measures by the state: A priori, if the judicial system is insufficiently equipped or poorly organized, the judiciary will not be capable to conduct hearings within a reasonable time. But also with respect to securing other rights and freedoms, it may be insufficient 47 Grabenwarter, Pabel, Menschenrechtskonvention 154; Frowein, Peukert, Menschenrechtskonvention 33. 48 Cf. Calvelli and Ciglio v Italy App no 32967/96 (ECtHR, 17 January 2002) para 48; Grabenwarter, Pabel, Menschenrechtskonvention 146. 49 Röben, ‘Grundrechtsberechtigte’ 247. 50 Cf. Tomuschat, ‘Breach’ 321 et seq. 51 Buchholz v Germany App no 7759/77 (ECtHR, 6 May 1981) para 51; Brigandì v Italy App no 11460/85 (ECtHR, 19 February 1991) para 30; Bottazzi v Italy App no 34884/97 (ECtHR, 28 July 1999) para 22; Grabenwarter, Pabel, Menschenrechtskonvention 142 and 431.



obligation to implement the convention63

to abstain from introducing, directing or authorizing violating measures, but rather be necessary to make dispositions to ensure that the rights of the Convention are actually adhered to in practice. Accordingly, the Court has stated that Article 3 requires the Contracting States to take measures to ensure that individuals are not subjected to torture or inhuman or degrading treatment within their jurisdiction.52 In the cited cases, the Court clearly formulated this principle generally, thus not only in terms of an obligation to protect individuals from interferences by private individuals, but also in terms of state measures to ensure that national authorities act in conformity with the obligation not to interfere with individuals’ rights. These questions are discussed as duties to “fulfil” human rights obligations by adopting all necessary measures to ensure that the rights in question are implemented to the greatest extent possible.53 In summary, it derives in particular from Article 1 that the Contracting States are not only under the obligation to refrain from acting towards individuals in a way which is contrary to the Convention, but that they have the obligation to bring their internal legal order in line with the Convention requirements. In terms of public international law, this obligation may be seen as an obligation of result, since it is for each Contracting State to decide on the manner of how to adapt its internal order to the Convention.54 As regards obligations not to interfere with individuals’ rights, the Contracting States must refrain from adopting legislation or administrative practices which are in conflict with the rights safeguarded in the Convention. This implies that the Contracting States have to make arrangements in order to ensure that no one’s sphere is unduly interfered with by state authorities. This is particularly distinct in case of procedural rights, with respect to which there are clear statements of the Court regarding the Contracting States’ duty to establish structures which ensure adherence to the Convention. It follows, in turn, that any failure to secure the rights of the Convention by failing to adapt the internal legal order to its requirements (i.e. the existence of structural deficiencies actually or potentially leading to an illtreatment of individuals) constitutes a violation of the Convention. As regards domestic legislation this was made clear by the Court in Ireland v The United Kingdom where it stated that 52 A v The United Kingdom Case no 100/1997/884/1096 (ECtHR, 23 September 1998) para 22; D.P. & J.C. v the United Kingdom App no 38719/97 (ECtHR, 10 October 2002) para 109. 53 Cf. Nowak, Introduction 49 et seq. 54 Petzold, ‘Subsidiarity’ 44.

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chapter twelve [a breach of a right enshrined in the Convention] results from the mere existence of a law which introduces, directs or authorises measures incompatible with the rights and freedoms safeguarded ….55

However, in Ireland v The United Kingdom, the Court continues that a breach of the Convention was only constituted by domestic legislation as such if the latter was couched in terms sufficiently clear and precise to make the breach immediately apparent; otherwise, the decision as to the existence of a violation had to be arrived at by reference to the manner in which the respondent State interpreted and applied the domestic law under consideration in concreto. In the light of this case-law, it is questionable where the line is to be drawn, beyond which a law may constitute a violation by itself, and inside which a violation may only be constituted by the application of that law, whereas not by the existence of the law itself. It is to be assumed that the Court, in Ireland v The United Kingdom, did not intend to confine its principle to cases where the very existence of domestic legislation continuously and directly affected individuals’ rights under the Convention (thus, without acts of application of that law being necessary), as it was, for instance, the case in Marckx or Dudgeon.56 As the Court’s wording implies, a violation is present if a law introduces or directs measures incompatible with the Convention, not only if it creates a situation contrary to the Convention by its very existence.57 Similarly as in Ireland v The United Kingdom, though with a stronger focus on the question if private acts were attributable to the respondent State, in Young, James and Webster the Court held that [u]nder Article 1 … each Contracting State “shall secure to everyone within [its] jurisdiction the rights and freedoms defined in … [the] Convention”; hence, if a violation of one of those rights and freedoms is the result of non-observance of that obligation in the enactment of domestic legislation, the responsibility of the State for that violation is engaged. Although the 55 Ireland v The United Kingdom App no 5310/71 (ECtHR, 18 January 1978) para 240. Cf. also Abdulaziz, Cabales and Balkandali v The United Kingdom App nos 9214/80 and others (ECtHR, 28 May 1985) para 93: “The Court has found that the discrimination … of which [the applicants] were victims was the result of norms that were in this respect incompatible with the Convention”. Also in Marckx v Belgium App no 6833/74 (ECtHR, 13 June 1979) the compatibility of domestic legislation itself with the Convention was subject of the Court’s examination. 56 Marckx v Belgium App no 6833/74 (ECtHR, 13 June 1979) para 33; Dudgeon v The United Kingdom App no 7525/76 (ECtHR, 22 October 1981) para 41; cf. Chapter 13.3.4 (p 76 below). 57 Apparently of a different view is Judge Fitzmaurice in (para 28 of) his Dissenting Opinion to Marckx v Belgium App no 6833/74 (ECtHR, 13 June 1979).



obligation to implement the convention65 proximate cause of the events giving rise to this case was the 1975 agreement between British Rail and the railway unions, it was the domestic law in force at the relevant time that made lawful the treatment of which the applicants complained. The responsibility of the respondent State for any resultant breach of the Convention is thus engaged on this basis.58

Therefore, if domestic legislation is in line with (or violates) the Con­ vention, may be assessed without reference to concrete occurrences of detrimental measures directed at individuals.59 Thus, it can be concluded that domestic legislation as such, by introducing, directing or authorising measures incompatible with the Convention, may be in conflict with the requirements of the latter, so that its mere existence constitutes a violation: Since the respective Contracting State failed to adjust domestic legislation to the Convention requirements, it failed to secure the rights enshrined in it. Apart from domestic legislation, it is questionable if an accumulation of similar breaches of the Convention taken by itself, thus without reference to the underlying roots of those violations, may constitute a violation. As was elaborated on above, the Court has based the application of the pilot-judgment procedure not only on instances of domestic legislation being in conflict with the Convention.60 On several occasions, the Court merely referred to repeated instances of previous breaches in order to justify its application of the pilot-judgment procedure, and spoke of a practice incompatible with the Convention in that regard.61 This notion was already used by the Court before the first pilot-judgment procedure; in 1978, the Court defined it as an accumulation of identical or analogous  breaches which were sufficiently numerous and inter-connected to amount not merely to isolated incidents or exceptions but rather to a pattern or system.62 Since the Court based pilot judgments on such

58 Young, James and Webster v The United Kingdom App nos 7601/76, 7806/77 (ECtHR, 13 August 1981) para 49 (emphasis added). 59 Except, as highlighted on p 64, if the law under consideration is not clearly and precisely phrased. 60 As it did in Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 235 et seq; Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 77 et seq. and para 110 et seq. 61 Eg. Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) para 64 et seq; Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 131 et seq; Finger v Bulgaria App no 37346/05 (ECtHR, 10 May 2011) para 115 et seq; Dimitrov and Hamanov v Bulgaria App nos 48059/06, 2708/09 (ECtHR, 10 May 2011) para 110 et seq. 62 Ireland v The United Kingdom App no 5310/71 (ECtHR, 18 January 1978) para 159; Cyprus v Turkey App no 25781/94 (ECtHR, 10 May 2001) para 115; Ohms, ‘Artikel 33 EMRK’ 12.

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accumulations of breaches it is to be asked if they constitute a violation of the Convention as such. While in Cyprus v Turkey the Court stated that “a practice does not of itself constitute a violation separate from … breaches (in individual cases; author’s remark)”,63 in Ireland v The United Kingdom the Court held that it had found practices “in breach of” Convention provisions.64 Further­ more,  it is argued that a Contracting State may challenge an (adminis­ trative) practice in another Contracting State by way of an inter-state complaint65—as being a violation by itself and not merely in order to avoid the requirement of exhaustion of domestic remedies.66 Since, in the context of the inter-state complaints procedure, it is required to bring forward allegations of a breach of the Convention, the suitability of an administrative practice for an inter-state complaint indicates that a practice incompatible with the Convention may constitute a violation as such. On the other hand, it obviously follows from defining a practice incompatible with the Convention as an accumulation of similar breaches in individual cases that such a practice can only exist if there are actual occurrences of individuals being treated contrary to the Convention. Furthermore, the existence of such a practice cannot by itself be the root or structural cause of those detrimental measures in individual cases; it rather is a synonym for numerous analogous breaches in individual cases. It is most likely that a practice incompatible with the Convention has a structural cause in the respective Contracting State’s domestic legal order—however, it is not the cause itself. In other words, while the finding of a national legal provision, causing measures contrary to the Convention, identifies the Contracting State’s failure to secure the conventional rights as the “corpus delicti”, the finding of a practice incompatible with the Convention merely implies that the Contracting State has failed to “secure” (cf. Article 1) compliance with the rights of the Convention. Thus, it will be most accurate not to regard an accumulation of identical breaches as a violation of the Convention itself, besides and in addition to the occurrences of ill-treatments of individuals such a practice necessarily involves. Nevertheless, the structural deficiencies at the root of such an accumulation of identical breaches are to be considered a violation of the 63 Cyprus v Turkey App no 25781/94 (ECtHR, 10 May 2001) para 115. 64 Ireland v The United Kingdom App no 5310/71 (ECtHR, 18 January 1978) para 241. 65 Van Dijk and others, Theory and Practice 47; Ohms, ‘Artikel 33 EMRK’ 12; cf. Denmark, Norway, Sweden, Netherlands v Greece (The Greek Case) App nos 3321/67 and others (ECtHR, 5 November 1969) (Report of the Sub-Commission) para 12 and 251. 66 Cf. Matscher, ‘Garantie’ 424.



obligation to implement the convention67

Convention, since by failing to eliminate such structural causes, the Contracting States fail to secure the rights of the Convention as it is required by Article 1. Consequently, it is not only the concrete measure of an ill-treatment of an individual which constitutes a violation of the Convention, but it is also the existence of structural deficiencies in the domestic legal system leading to those measures which constitute a violation as such. As regards domestic legislation this is acknowledged in case-law and legal doctrine, whereas a practice incompatible with the Convention (merely) points to structural deficiencies which are contrary to the Convention, without constituting a violation by itself. Deficiencies in the implementation of the Convention which amount to violations of the latter make clear that the Contracting States’ internal state of affairs as regards implementation is a matter of public international law and may thus be subject to international monitoring. 12.3 Application of these Principles: Failures to Implement the Convention As was just concluded, the Contracting States undertook to ensure that their internal legal order is in conformity with the Convention. This obligation does not only amount to the duty to refrain from treating individuals contrary to their conventional rights, but also to the obligation to shape their domestic legal structures in a way which ensures compliance with the rights of the Convention. Any such failure to secure the rights of the Convention constitutes a violation of the latter by itself. Accordingly, the structural problems found by the Court in its pilotjudgment procedures amounted to violations of the Convention in terms of failures to implement the latter,67 as shall be exemplified in the following. On the one hand, failures to implement the Convention were constituted by domestic legislation which introduced, directed or authorised measures incompatible with the rights and freedoms safeguarded in the Convention. This was prototypical in Hutten-Czapska, concerning the malfunctioning of Polish housing legislation which imposed, on individual landlords, “restrictions on increases in rent for their dwellings, making 67 This is similarly argued by Judge Zupančič with respect to the Court’s judgment in Scozzari and Giunta, when he states that the situation which had caused the violation in the first place was in fact the violation found in the case (Judge Zupančič, Concurring Opinion to Broniowski v Poland App no 31443/96 [ECtHR, 22 June 2004]).

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it impossible for them to receive rent reasonably commensurate with the general costs of property maintenance.”68 In this case, there existed a failure to implement the Convention; the respondent State had failed to bring its domestic legislation in line with the Convention requirements. Consequently, the Court spoke of a systemic violation69 underlying the concrete ill-treatment of the applicant and not merely of a systemic problem—at least in its reasoning.70 Likewise, in Greens and M.T. domestic legislation was the source of repeated ill-treatments of individuals by way of an excessive restriction for prisoners to vote.71 In Hirst (the failed execution of which the Court explicitly highlighted in the operative part of Greens and M.T.) the Court had already analysed these provisions and had concluded that they fell outside any acceptable margin of appreciation.72 The existence of such a legislative provision in the domestic legal order of a Contracting State amounts to a violation of the obligation to secure the rights of the Convention. The facts in Rumpf, concerning the repetitive excessive duration of court proceedings in Germany, revealed the neglect of the respondent State to fully implement the rights of the Convention by way of a failure to organize its legal systems in a way which allowed the competent authorities to meet the relevant obligations deriving from Article 6.73 Acting on the assumption that this principle does not only apply to the right to a hearing within a reasonable time, but likewise to other procedural guarantees as enshrined in particular in Article 6,74 deficiencies in the domestic legal system, entailing instances of non-enforcement of final domestic court decisions, also constitute a violation of the Convention—as it was the case in Olaru, Burdov (No 2) and Yuriy Nikolayevich Ivanov.75

68 Verbatim Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 235. 69 Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 231. 70 See in contrast Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) 3rd operative provision. 71 Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 77 et seq. 72 Hirst v The United Kingdom (No 2) App no 74025/01 (ECtHR, 6 October 2005) para 82. 73 Buchholz v Germany App no 7759/77 (ECtHR, 6 May 1981) para 51; Brigandì v Italy App no 11460/85 (ECtHR, 19 February 1991) para 30; Grabenwarter, Pabel, Menschen­ rechtskonvention 142 and 431. 74 See p 62 above and, implicitly in its elaborations on the general principles of Article 6, Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 70. 75 Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) para 53 et seq; Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 132; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 83 et seq.



obligation to implement the convention69

In Suljagić the way domestic legislation was applied amounted to a violation of the Convention in terms of an administrative practice incompatible with the Convention—the respondent State had failed to secure the rights of the Convention. Even without an explicit finding that the existence of an administrative practice of undue application of domestic legislation pointed to a structural violation of the Convention, the Court indicated this understanding: In its elaborations on the application of the pilot-judgment procedure the Court noted that the “violation … found … affects many people”.76 However, it was not the ill-treatment of the applicant itself which affected many people, but rather the structural deficiencies in the respondent State at the root of this ill-treatment. Therefore, by “violation” the Court could only have meant these underlying deficiencies.

76 Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) para 63.

CHAPTER THIRTEEN

OBLIGATION TO ABIDE BY JUDGMENTS OF THE COURT 13.1 Introduction The pilot-judgment procedure aims at resolving structural human rights problems in Contracting States as effectively as possible. To that end, the Court prescribed concrete measures that had to be taken by the concerned Contracting State following a pilot judgment—a practice which has raised questions as to its conformity with the Convention and also concerning its legal effects on the Contracting States. Thus, an examination of these questions—the conformity of the pilot-judgment procedure with the Convention as well as its legal effects—will necessarily involve an examination of the obligations which derive from a judgment of the Court finding a violation. In other words: an analysis of the Court’s practice of ordering remedial measures will involve an analysis of the Contracting States’ obligations to take remedial measures following judgments of the Court. In addition, in several pilot judgments the Court dealt with human rights problems which had already lead to findings of individual violations of the Convention in previous judgments against the same Contracting State.77 Consequently, in those cases the Court’s findings of systemic problems or of practices incompatible with the Convention also implied and reflected a past failure of the concerned Contracting State to take remedial measures following a judgment in order to prevent the recurrence of similar violations. Also in this respect it is to be asked which obligations follow from a judgment finding a violation.

77 Eg. Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 129, 133 et seq.



obligation to abide by judgments of the court71 13.2 Public International Law

The Convention is an international (human rights) treaty binding its signatories to secure to everyone within their jurisdiction the rights and freedoms enshrined in it. Therefore, any encroachment of a right or freedom protected by the Convention, which is not in conformity with the rules laid down therein, amounts to a violation of a rule of public international law, i.e. to an internationally wrongful act.78 Since, as it derives from Article 19, the Court is appointed in the Convention to ensure the observance of the engagements undertaken by the Contracting States, a final judgment of the Court, finding a violation of the Convention, is an authoritative finding that a violation of international law (thus, an internationally wrongful act) has occurred.79 According to international law, any such violation entails obligations of liability.80 From this it follows that, when examining the legal implications of a judgment of the Court finding a violation, it is first to be ascertained what follows from a violation of international law, and subsequently, what follows specifically from a violation of the Convention which has been established in a judgment by the Court. The basic principles of state obligations following an internationally wrongful act were defined by the Permanent Court of International Justice in the Case Concerning the Factory at Chorzów. It its judgment, the PCIJ decided that a state which was responsible for an internationally wrongful act was bound to make reparation,81 thus, it had to “wipe out all the consequences of the illegal act and re-establish the situation which would … have existed if that act had not been committed”.82 This principle is established in legal doctrine83 and laid down, in principle, in the Draft Articles.84 Reparation primarily means restitutio in integrum; if this is not possible, it means compensation.85 If only immaterial damage has occurred, or if restitution or full compensation is not possible, the responsible state has to

78 Cf. Zemanek, ‘Responsibility’ 219. 79 Cf. Okresek, ‘Artikel 46 EMRK’ 3. 80 Zemanek, ‘Responsibility’ 219. 81 PCIJ, Chorzów (Jurisdiction) 21. 82 PCIJ, Chorzów (Merits) 47. 83 Neuhold, Hummer, Schreuer, Völkerrecht 515; Zemanek, ‘Responsibility’ 225; Herdegen, Völkerrecht 453; Verdross, Simma, Völkerrecht 873. 84 Articles 31 and 34 et seq. of the Draft Articles. 85 PCIJ, Chorzów (Merits) 47; Article 35 et seq. of the Draft Articles; Neuhold, Hummer, Schreuer, Völkerrecht 516 et seq; Zemanek, ‘Responsibility’ 226; Verdross, Simma, Völkerrecht 874 et seq; Herdegen, Völkerrecht 453.

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give satisfaction.86 In general, the responsible state must cease the conduct which is contrary to its international obligation if this conduct still continues.87 Thus, these basic rules focus on eradicating an internationally wrongful act and its harmful consequences as completely as possible. As regards future obligations, international practice contains the legal instruments of assurances and guarantees of non-repetition of internationally wrongful acts:88 Article 30 lit b of the Draft Articles obliges a state, responsible for an internationally wrongful act, to offer appropriate assurances and guarantees of non-repetition if circumstances require so. While an assurance is normally a verbal promise of non-repetition, guarantees shall include more concrete acts of prevention.89 The Human Rights Committee has also repeatedly assumed an obligation of the responsible state to take preventive measures after a violation of the ICCPR.90 In that regard, the ICJ spoke of specific measures as a means of preventing the recurrence of a wrongful act, and assumed obligations to take measures preventing the recurrence of future violations.91 13.3 The Convention 13.3.1 “Binding Effect” of Judgments According to Article 46 § 1 the Contracting States undertake to abide by the final judgment of the Court in any case to which they are parties. With reference to this provision, it is argued that the (final92) judgments of the Court have a binding force or effect which indicates that reference is being made to concepts of res iudicata in national legal systems.93 86 Cf. ICJ, Corfu Channel 3; Zemanek, ‘Responsibility’ 226; Neuhold, Hummer, Schreuer, Völkerrecht 521. 87 Neuhold, Hummer, Schreuer, Völkerrecht 516; Zemanek, ‘Responsibility’ 225; Article 30 of the Draft Articles. 88 See the references in ILC, ‘Draft Articles with Commentaries’ 90; cf. also Buyse, ‘Procedure’ 84. 89 ILC, ‘Draft Articles with Commentaries’ 90. 90 Polakiewicz, Verpflichtungen 149 with further reference. 91 ICJ, LaGrand para 120; Neuhold, Hummer, Schreuer, Völkerrecht 516; sceptically ILC, ‘Draft Articles with Commentaries’ 90. 92 Cf. Article 44. The final character of the judgments of the Court is also referred to as an aspect of the binding force of the judgments of the Court (cf. for instance Ress, ‘Wirkung’ 231) which is however of minor relevance in the context of the pilot-judgment procedure. 93 Cf. for instance the terminology used by Ress (‘Einzelfallbezogenheit’ 736): “Rechtskraft der Urteile”. Cf. also Ress, ‘Effects’ 801; Frowein, ‘Binding Force’ 261; Klein, ‘Effect’ 705.



obligation to abide by judgments of the court73

From the perspective of public international law, it is to be analysed what follows from the agreement of the states to abide by the judgments of an international court; thus, which actions have to be taken by the Contracting States have to take as the consequence of undertaking to abide by the judgments of the Court. However, before turning to this question the limits of the binding effect of the Court’s judgments are to be examined. In this respect, it is to be said that all obligations which may derive from the Contracting States’ undertaking to abide by the judgments of the Court are limited to the respective Contracting States which were parties to the proceedings, as it derives explicitly from the wording of Article 46 § 1. Thus, while the obligation to secure the rights of the Convention (as deriving from Article 1) binds all Contracting States alike and irrespective of any occurrences of individual violations, the obligations deriving from Article 46 only bind the Contracting State which was party to the respective proceedings before the Court.94 A judgment finding a violation (and the Court’s interpretation of the Convention developed and applied therein) does not bind the remaining Contracting States; it is assumed that it merely has guiding effects on them.95 Furthermore, it is argued that the binding effect of a judgment finding a violation was limited to the subject-matter of the respective proceedings before the Court. F. Matscher notes that the subject-matter of proceedings was first and foremost the finding if the alleged violation of the Convention had indeed taken place.96 J. Meyer-Ladewig also points out that the judgments were only binding insofar as the Court adjudicated on the violation of the Convention which has been alleged by the applicant. A judgment finding a violation only related to the administrative act, or the judgment which was at the basis of the violation, whereas the domestic legislation which determined that act or judgment lay outside the binding effect of the judgment.97 Proceeding on these opinions, it could be argued that any assessments and findings which went beyond the assessment of the alleged illtreatment of the individual applicant would lie outside the binding effect of judgments of the Court since they were outside the subject-matter of proceedings. In this respect, J. Polakiewicz highlights that the exclusion of 94 Binding effect ratione personae: Klein, ‘Effect’ 706; Ress, ‘Wirkung’ 231. 95 Ress, ‘Urteile’ 350 (“Orientierungswirkung”); Grabenwarter, Menschenrechtskonvention 106. 96 Matscher, ‘Verfahren’ 525. 97 Meyer-Ladewig, Menschenrechtskonvention 395 and 400.

Pabel,

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an examination of the conformity of domestic legislation with the Con­ vention in proceedings following an individual application could not be without consequences for the limits of the binding effect of judgments of the Court.98 He apparently indicates that findings on all questions which the Court was competent to examine had binding effect, so that findings on domestic legislation had no binding effect since the conformity of domestic legislation with the Convention lay outside the subject-matter of proceedings in the individual complaints procedure. This raises questions concerning the legitimate scope of proceedings before the Court, i.e. in particular the Court’s competences in individual complaints procedures. It is to be asked if the Court may go beyond an assessment of the specific ill-treatment of the applicant in its judgments (in the present context, if the Court may elaborate on the implications of a systemic problem behind this ill-treatment), and if so, if these findings are binding upon the concerned Contracting State. However, this question primarily concerns the Court’s powers and competences under the Con­ vention, and will therefore be analysed below.99 13.3.2 Obligations Deriving from Judgments In the following, it is to be ascertained which obligations derive from the Contracting States’ undertaking to abide by the final judgments of the Court, which find a violation of the Convention. According to traditional case-law and legal doctrine, the Court’s judgments are essentially declaratory.100 The Court merely finds if the facts of the case, as alleged by the applicant, reveal a violation of the Convention, however, it does not expressly state, except for the award of just satisfaction under Article 41, which remedial measures the concerned Contracting State has to take in order to abide by the judgment (and thus to discharge its obligation under Article 46).101 Therefore, the Court’s judgments do traditionally not explicitly state which remedial measures the respondent State has to take following the finding of a violation of the Convention. These remedial obligations are neither specified by the Convention itself: Article 46 § 1 merely stipulates that the concerned Contracting 98 Polakiewicz, Verpflichtungen 40. 99 Chapter 16 (p 103), especially Chapter 16.3.5 (p 128). 100 Cf. to the implications of that approach Chapter 17.3.1 (p 145). 101 Marckx v Belgium App no 6833/74 (ECtHR, 13 June 1979) para 58; in legal doctrine Callewaert, ‘Judgments’ 729; Matscher, ‘Verfahren’ 525; Okresek, ‘Artikel 46 EMRK’ 6; Judge Costa, Partly Concurring Opinion to Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004) para 3.



obligation to abide by judgments of the court75

States have to “abide” by the judgment of the Court, without saying which specific obligations that entails.102 The measures which may be required under Article 46 are mostly established with reference to principles of public international law concerning the obligations following from an internationally wrongful act. Generally, it is assumed that the Contracting States undertook to acknowledge the finding of the Court as regards the existence of a violation of the Convention,103 and furthermore, that they undertook to take certain measures of reparation or prevention following a judgment finding a violation. 13.3.3 Individual Measures As regards individual remedial measures, it is to be recalled that the vast number of proceedings before the Court are commenced by individuals claiming to be the victims of violations of the Convention. According to Article 41, the Court shall afford just satisfaction to the injured party if the internal law of the respondent State allows only partial reparation. This indicates that, in case of the Convention, it is not the Contracting States which may have claims arising from a breach—as it would be according to international law as a rule—, but that it is individuals, who have been affected by measures of state authorities, who may have claims.104 Nevertheless, the Court has referred to principles as developed in public international law when elaborating on the obligations of the Contract­ ing  States to remedy the individual applicant after a breach of the Convention.105 As regards the implications of a judgment finding a violation of an individual applicant, the respondent State must, in analogy with the rules of international law governing state responsibility, put an end to the violation if it is still on-going, and make reparation for its consequences in such a way as to restore the situation before the breach as far as possible.106 The latter also derives from Article 41,107 which corresponds with the 102 Similarly Ress, ‘Wirkung’ 234. 103 Meyer-Ladewig, Menschenrechtskonvention 396; cf. Haidenhofer, ‘Umsetzung’ 804. 104 Cf. Polakiewicz, Verpflichtungen 10 with further reference. 105 Cf. Okresek, ‘Artikel 41 EMRK’ 6; Karl, ‘MRK Artikel 41’ 4; cf. also Papamichalopoulos and Others v Greece (Article 50) App no 14556/89 (ECtHR, 31 October 1995) para 36. 106 Papamichalopoulos and Others v Greece (Article 50) App no 14556/89 (ECtHR, 31 October 1995) para 34; Panov v Moldova App no 37811/04 (ECtHR, 13 July 2010) para 18; Okresek, ‘Artikel 46 EMRK’; Frowein, Peukert, Menschenrechtskonvention 604; Frowein, Villiger, ‘Report’ 47; Ress, ‘Effects’ 803. 107 Okresek, ‘Artikel 46 EMRK’.

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obligation to provide restitutio in integrum deriving from the rules of state responsibility in international law.108 13.3.4 General Measures It is acknowledged that the Contracting States may be obliged to take measures which exceed reparation towards the individual applicant (“general” measures). In Scozzari and Giunta, which the Court later referred to in its pilot judgments,109 the Court stated that “a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures 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”.110 In The Sunday Times, concerning an injunction against the applicant which the Court had found to be in breach of Article 10, the Court had already stated that “the Contracting States concerned are in any event under an obligation to adjust their domestic law to the requirements of the Convention”.111 The Court’s phrasing (“the Contracting States concerned”112) indicates that the Court did not only refer to the Contracting States’ general obligation to implement the Convention according to Article 1,113 but also to the respective Contracting States’ duties as deriving from the particular case. General measures have been described as potentially including legislative or regulatory amendments, changes of case law and administrative practice or publication of the Court’s judgment in the language of the respective Contracting State, and its dissemination to the concerned authorities.114 As regards the aim of general measures, they are described

108 Polakiewicz, Verpflichtungen 51. 109 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 192; Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) para 55. 110 Scozzari and Giunta v Italy App nos 39221/98, 41963/98 (ECtHR, 13 July 2000) para 249; Verein gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) App no 32772/02 (ECtHR, 30 June 2009) para 85; cf. Haidenhofer, ‘Umsetzung’ 804. 111 The Sunday Times v The United Kingdom (Article 50) App no 6538/74 (ECtHR, 6 November 1980) para 16. 112 The Sunday Times v The United Kingdom (Article 50) App no 6538/74 (ECtHR, 6 November 1980) para 16, emphasis added. 113 Cf. Chapter 12.2 (p 58). 114 Cf. Rule 6 of the Committee of Ministers’ ‘Rules for the Supervision of the Execution of Judgments’; Polakiewicz, ‘Execution’ 63.



obligation to abide by judgments of the court77

as being directed at preventing similar violations in the future,115 at ceasing an on-going violation or at providing full reparation. Partly, it is only said that the obligation to take general measures aimed at fully implementing the Convention, e.g. by adjusting domestic legislation to the requirements of the Convention. In legal doctrine, a main focus regarding general measures lies on the question if the Contracting States have bound themselves by way of Article 46 § 1 to alter domestic legislation following a judgment finding a violation. First, this is undisputed if the ill-treatment of an individual is directly constituted by the existence of domestic legal provisions in the absence of any specific measure of implementation.116 In several cases the Court has explicitly found domestic legislation itself to be in conflict with the Convention, and thus included the national provision in the subjectmatter of proceedings.117 In Marckx, the Court found that it was inevitable that its decision had effects extending beyond the confines of this particular case, especially since the found violations stemmed directly from the contested provisions and not from individual measures of implementation.118 In Klass and Others, the Court acted on the presumption that the respondent State was going to remedy the deficiencies found in the respondent State’s domestic legislation, which had permitted too far reaching measures of surveillance.119 The obligations to take general measures have been discussed as originating from an obligation to cease an on-going violation: According to J. Polakiewicz, the act of maintaining in force and applying a law which had been declared incompatible with the Convention constituted a continuing violation of the Convention; therefore, cessation would only be possible by amending the law.120 Similarly, J. Frowein and W. Peukert derive from the obligation of cessation the duty to amend domestic legislation if the violation lies in the existence of a national legal provision.121 Other legal commentators refer in this context 115 Also formal assurances of non-repetition can be found in the history of Convention practice, see for example Ireland v The United Kingdom App no 5310/71 (ECtHR, 18 January 1978) para 153. 116 Meyer-Ladewig, Menschenrechtskonvention 400 et seq; Okresek, ‘Artikel 46 EMRK’ 10; Frowein, Peukert, Menschenrechtskonvention 604. 117 Cremer, ‘Entscheidung’ 1754; cf. also Frowein, Villiger, ‘Report’ 50; Ress, ‘Wirkung’ 235. 118 Marckx v Belgium App no 6833/74 (ECtHR, 13 June 1979) para 58; cf. also Norris v Ireland App no 10581/83 (ECtHR, 26 October 1988) para 50. 119 Klass and Others v Germany App no 5029/71 (ECtHR, 6 September 1978) para 49. 120 Polakiewicz, ‘Execution’ 58. 121 Frowein, Peukert, Menschenrechtskonvention 604; see also Frowein, ‘Binding Force’ 262.

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to the obligation to provide full reparation: If a violation was caused by the existence of a legal provision, only an amendment of internal law constituted compliance with the obligation to provide full reparation, according to G. Ress.122 Generally, it is said that the concerned Contracting State has to bring its internal legal order in line with the Convention.123 It has been more controversial if the Contracting States are bound to alter domestic legislation in case a provision merely determined or allowed measures of administrative authorities or courts to violate the rights of individuals, thus, if the ill-treatment was not caused by the existence of a national legal provision, but only by its application. This could be doubted since it is argued, as a rule, that the conformity of national provisions with the Convention lied outside the subject-matter of proceedings, and that the Court only decided on individual measures of ill-treatment.124 Nevertheless, it is assumed that the Contracting States are under the obligation to prevent the recurrence of similar violations,125 which may only be effectuated either by interpreting the respective national provisions in conformity with the Convention or, probably more effectively, by amending the national provision.126 Occasionally, the obligation to prevent the recurrence of violations of the Convention is assumed to exist merely with respect to the applicant of the respective proceedings, i.e. that this obligation was limited to preventing further occurrences of similar violations against the same applicant (which derived, according to some authors, from the limitations of the subject-matter of proceedings before the Court).127 However, preventing future similar violations of the applicant’s rights would certainly also prevent similar violations of the rights of other individuals. Admittedly, the latter would merely be a factual rather than a legal implication of the obligations deriving from a judgment finding a violation.128 Other scholars assume that the Contracting States are obliged to take preventive measures in order to forestall similar violations of the Convention with respect 122 Ress, ‘Effects’ 803; cf. furthermore Polakiewicz, ‘Execution’ 62. 123 Okresek, ‘Artikel 46 EMRK’ 10. 124 Meyer-Ladewig, Menschenrechtskonvention 395; cf. Chapter 13.3.1 (p 72). 125 Polakiewicz, ‘Execution’ 63; Karl, ‘Vollzug’ 45 et seq. with reference to the case-law of the International Court of Justice (cf. above Chapter 13.2, p 71) and to the supervisory practice of the Committee, which includes the adoption of necessary general measures in its supervision of a judgment (cf again Rule 6 of the Committee of Ministers’ ‘Rules for the Supervision of the Execution of Judgments’); Van Dijk and others, Theory and Practice 295. 126 Frowein, Villiger, ‘Report’ 51 et seq; cf. Cremer, ‘Entscheidung’ 1754 with reference to the Görgülü-judgment of the German Constitutional Court. 127 Klein, ‘Effect’ 708 and 711. 128 Cremer, ‘Entscheidung’ 1755.



obligation to abide by judgments of the court79

to other persons than the applicant of proceedings which lead to the finding of a violation.129 This is argued with reference to the case-law of the ICJ;130 besides, the Committee considers the execution process to be concluded only after general measures have been adopted by the respective Contracting State, if the circumstances so require.131 More generally, it is said that the Contracting States are bound to bring their national legal order in line with the Convention if deficiencies have come to light by way of a judgment of the Court.132 However, a high probability of recurrences of similar violations in other cases will not only exist if the ill-treatment of individuals was determined by domestic legislation. The danger of recurrence will also be present in case a violation was prompted by multicausal deficiencies in the domestic (legal) structures of a Contracting State, for instance by deficiencies in the organisation of the judiciary which lead to the excessive length of court proceedings.133 In this respect, it is to be highlighted that legal doctrine does not limit the obligation to prevent the recurrence of similar violations (be them with respect to the applicant or to any other person) to legislative amendments, but that it considers the Contracting States to be obliged to take any (general) measures which are necessary to prevent future violations,134 or to provide full restitution.135 Thus, in case of unreasonably long national court proceedings the concerned Contracting State would be bound to take all necessary measures to ensure that the found violation was not repeated, either by way of legislative amendments or by way of any other measures aiming at restructuring the judiciary.

129 Cremer, ‘Entscheidung’ 1755; apparently also Matscher, ‘Verfahren’ 525. 130 Eg. Karl, ‘Vollzug’ 46. 131 Cf. Rule 6 § 2 of the Committee of Ministers’ ‘Rules for the Supervision of the Execution of Judgments’; Polakiewicz, Verpflichtungen 179 et seq. 132 Okresek, ‘Umsetzung’ 170; similarly Ress, ‘Wirkung’ 233; Frowein, Peukert, Men­ schenrechtskonvention 604. This is also argued with respect to friendly settlements, which are only to be accepted by the Court if they are concluded on the basis of respect for human rights as defined in the Convention (Article 39). If the alleged violation originates in (the application of) legal provisions which are not in conformity with the Convention, it is argued that the Court may only accept the settlement if the respective internal legislation has been brought in line with Convention standards (Grabenwarter, Pabel, Men­ schenrechtskonvention 87 with further reference). 133 As it was a recurring subject of pilot-judgment procedures (eg. Rumpf v Germany App no 46344/06 [ECtHR, 2 September 2010]). 134 Cremer, ‘Entscheidung’ 1755; apparently also Matscher, ‘Verfahren’ 525; Ress, ‘Einzelfallbezogenheit’ 737 et seq. 135 Cf. Scozzari and Giunta v Italy App nos 39221/98, 41963/98 (ECtHR, 13 July 2000) para 249.

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As regards the legal basis of an obligation to take general measures it is referred, on the one hand, to the Contracting States’ undertaking to abide by judgments of the Court according to Article 46 § 1.136 On the other hand, this obligation is derived from the general duty to secure the rights of the Convention according to Article 1, and not from the binding effect of judgments. In legal doctrine, the latter point of view is argued with respect to the limited subject-matter of the Court’s judgments in the individual complaints procedure which would not, as a rule, include the legislative causes of individual detrimental measures.137 Therefore, obligations to take general measures would lie beyond the binding effect of judgments of the Court according to Article 46 § 1.138 However, also in this understanding it is assumed that compliance with an obligation to take general measures was subject to the supervisory powers of the Committee.139 As was said above, the obligation to take general measures is described as aiming at either preventing the recurrence of future similar violations, at ceasing an on-going violation or at providing full restitution. General measures—i.e. measures which fully implement the Convention in a particular field—will most probably prevent future violations towards the applicant as well as towards other persons; accordingly, this understanding is to be regarded as stringent. As regards cessation and reparation, it is to be differentiated: As regards an individual applicant, it is disputable to qualify the obligation to take general measures as resulting from the obligation to cease an on-going violation of the Convention, since it would be in conflict with the common perception of cessation as a contrarius actus to a previous infringing act: As a rule, an ill-treatment of individuals  is effectuated in concreto by measures of domestic administrative authorities or courts,140 cessation of which would mean to bring those 136 Okresek, ‘Umsetzung’ 171; Polakiewicz, Verpflichtungen 49 and 179 et seq; Frowein, Peukert, Menschenrechtskonvention 604. 137 Meyer-Ladewig, Menschenrechtskonvention 400; apparently also Cremer (‘Entscheidung’ 1756) describes this obligation as being a normative implication of the Convention, instead of deriving from the binding effect of judgments; similarly Frowein, Villiger, ‘Report’ 50; Klein, ‘Effect’ 708 et seq; Polakiewicz, Verpflichtungen 39 et seq., notes that the effects of judgments on parallel national cases exceeds undoubtedly the limits of the binding effect of judgments; G Ress notes that it was an objective obligation, compliance with which would not be a right of the individual applicant (Ress, ‘Einzelfallbezogen­ heit’ 743). 138 Schmahl, ‘Piloturteile’ 378: “Ausdehnung jenseits der Rechtskraft”. 139 Meyer-Ladewig, Menschenrechtskonvention 400, who claims that this followed from customary international law which had developed in this respect. 140 Cf. Ohms, ‘Artikel 34 EMRK’ 8; cf. also the wording of Article 41 before the entry into force of Protocol No. 11: “… a decision or a measure taken by a legal authority or any other authority of a High Contracting Party … in conflict with the obligations arising from the



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measures to an end in case they are still ongoing (for instance, by releasing a prisoner in case his imprisonment was contrary to Article 5141). An amendment of legal structures which allowed or prescribed detrimental individual measures will probably not directly lead to their cessation, or would come to late in case the legislator was to get active.142 Likewise, it is disputable to qualify the obligation to take general measures as deriving from the obligation to provide full reparation. This concept is commonly associated with measures aimed at making good the damage incurred by the detrimental treatment of the individual applicant by restoring the situation which had existed before this treatment to the greatest extent possible.143 As a rule, the adoption of general measures will not effect this restoration or compensation as such.144 Apart from that, a violation of the Convention is not only constituted by an isolated ill-treatment of an individual, but also by the existence of legal structures which (potentially) lead to such ill-treatments, i.e. by deficiencies in the implementation of the Convention.145 In this respect, general measures could be regarded as aiming at the cessation of an on-going violation, in case the legal structures which have lead to repeated illtreatments of individuals still exist. Only if those legal structures are adapted to the Convention, the violation will be ceased.146 It is also to be noted that obligations to take general measures in order to implement the Convention and to prevent similar violations in the future exist after any judgment which reveals deficiencies in the implementation of the Convention. Therefore, obligations to take general measures do not depend on the existence of a widespread problem, i.e. a present Convention”. An exception will only be constituted in case a legal provision constitutes as such an ill-treatment of an individual (as it was the case in Marckx v Belgium App no 6833/74 [ECtHR, 13 June 1979], cf. p 77). 141 Cf. Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004) para 202; cf. Leeb, Umsetzung 30 et seq. 142 In case the ill-treatment of an individual is caused directly by domestic legislation in the absence of any further acts of administrative authorities or courts, it is argued that a continuing violation is present and that the Contracting State concerned was required to alter the respective provisions as a measure of cessation (cf. Leeb, Umsetzung 35 et seq.). 143 Cf. Leeb, Umsetzung 14 et seq. 144 Apparently, Judge Zupančič is of a different view (Concurring Opinion to Broniowski v Poland App no 31443/96 [ECtHR, 22 June 2004]), when he describes, with reference to Scozzari and Giunta (cf. Chapter 4.4, p 22), the obligation to take general measures as deriving from an obligation to cease an on-going violation and to provide full reparation. 145 Chapter 12.2 (p 58). 146 According to M. Breuer, the Court’s determinations in Broniowski are to be seen as aiming at cessation of an on-going violation (Breuer, ‘Urteilsfolgen’ 448 et seq; previously already Breuer, ‘Abhilfemaßnahmen’ 260 et seq; with reference to M Breuer also Schmahl, ‘Piloturteile’ 378).

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problem affecting numerous persons, although this appears to have been the Court’s approach in some occasions.147 An obligation to implement the Convention exists also if there is no imminent danger of a large number of persons being affected by deficiencies in Convention implementation in a Contracting State. Occurrences of a large number of persons actually or potentially being affected by a structural problem merely constitute situations which require particularly urgently measures of implementation to be adopted by the respondent State.148 The Court’s reference to its case-load, and to an impairment of its effectiveness resulting from the latter, may be of relevance as regards the Court’s competences to determine the Contracting States’ obligations following a judgment: A large number of persons being affected by systemic problems may speak in favour of interpreting Convention provisions as empowering the Court to deal most effectively with systemic problems and repetitive applications in order to preserve the Court’s functioning.149 To sum up, the Contracting States have to take general measures in order to fully implement the Convention if respective deficiencies have come to light. This obligation is to be considered as being directed at preventing the recurrence of similar violations in future. 13.3.5 Relevance of Execution for Convention Implementation It follows from the foregoing that obligations to take general measures, following a judgment finding a violation, have implications regarding the implementation of the Convention. As regards the relation between the duty to take general measures, and the obligation to implement the Convention, it was concluded above that the Contracting States are bound to adapt their internal legal order to the requirements of the Convention, including domestic legislation and administrative practices.150 Thus, this obligation exists per se, as deriving from Article 1, without a judgment of the Court finding a violation of the Convention (or even highlighting deficiencies in its national implementation) being necessary.

147 Cf. for instance Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 193; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 83 et seq. 148 Cf. only the figures invoked by the Court: Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 193; Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 235; Orchowski v Poland App no 17885/04 (ECtHR, 22 October 2009) para 147. 149 Cf. Chapters 17.4.3.2 (p 172) and 17.4.6 (p 181). 150 Chapter 12.2 (p 58).



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Article 46 adds another aspect to this obligation, deriving from the Contracting States’ obligation to take general measures in order to— depending on the assumed legal basis—cease an ongoing violation, provide full reparation or prevent the recurrence of similar violations in other cases. This obligation does not only exist in case of a development in the interpretation of the Convention applied by the Court for the first time in a judgment: Article 46 does not only ensure that the Contracting States adjust their legal orders to the developments in the interpretation of the Convention, but it also obliges the Contracting States to eliminate sources of potentially repeating violations. This duty binds the concerned Contracting States to implement the Convention in the respective field. Since Article 46 obliges the Contracting States to take the required general measures following a judgment finding a violation, a failure to do so is consequently to be regarded as a violation of the Convention.151 13.4 Application of these Principles: Failures to Comply with Judgments Besides the neglects on the side of the concerned Contracting States to secure the rights of the Convention (cf. Article 1 combined with the respective right under consideration), the Court’s elaborations in various pilot judgments revealed failures of the concerned Contracting States to remedy deficiencies in their domestic structures after previous judgments had already pointed to those deficiencies. Considering that the Contracting States are under the obligation to take general measures in order to repair deficiencies in the implementation of the Convention and to prevent future similar violations,152 failures to take those general measures constitute violations of the Convention. This was particularly clear in Burdov (No 2). According to the Court, the applicant’s case came to be considered after some 200 judgments had highlighted the problem of non-enforcement of final court decisions in Russia.153 Furthermore, the Court noted that the found violations had occurred several years after its first judgment concerning the same 151 Cf. Ohms, ‘Artikel 33 EMRK’ 11 who regards a failure to comply with Article 46 as a suitable subject of an inter-state complaint—which presupposes a classification of this failure as a breach of the Convention. 152 This obligation is regarded as deriving either from Article 1 or from Article 46 § 1, cf. Chapter 13.3.4 (p 76 above). 153 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 129, 133 et seq.

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applicant and similar facts,154 “notwithstanding Russia’s obligation under Article 46 to adopt … the necessary remedial and preventive measures, both at individual and general levels”.155 Also in Olaru and Others the Court stated that it had not been informed about the introduction of any effective remedies since it had established their lacking in various previous judgments concerning similar violations of the Convention—even without a violation of Article 13 having been alleged by the applicant or assessed by the Court out of its own notion.156 Likewise, in Yuriy Nikolayevich Ivanov the problem of non-enforcement of court decisions had been highlighted by the Court in previous judgments and had been dealt with by the Committee157—though it had not been resolved until the day the pilot judgment was issued in that case. In several judgments, the Court based its course of action and its findings of widespread problems primarily on the respective State’s failure to comply with its remedial obligations following a judgment finding a violation (rather than on deficiencies in the implementation of the Convention as such). In Rumpf the Court did so with respect to the excessive length of domestic court procedures and with extensive reference to previous caselaw concerning similar instances.158 In Greens and M.T. it did so with respect to the respondent State’s failure to comply with the Court’s judgment in the case of Hirst,159 including this finding even in the operative part of the pilot judgment.160 The Court’s course of action in Greens and M.T. is revealing as regards its approach to general measures: Since the Court reproved the respondent State’s failure to alter domestic legislation after a violation had been found to have its origins in the respective provisions in a case concerning another applicant, it made clear that the obligation to take general measures following a judgment finding a violation has 154 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009). 155 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 134. 156 Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) para 58. 157 Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 83, 85, 87. 158 Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) para 64 et seq; especially para 68: “While the Court welcomes the recent legislative initiative, it also notes that the respondent State has failed so far actually to put into effect any measures aimed at improving the situation, despite the Court’s substantial and consistent case-law on the matter”. 159 Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 78, 110 et seq. 160 Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) 1st operative provision: “Holds that the above violation has originated in the failure of the respondent State to execute the judgment of this Court in Hirst … ”.



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implications reaching beyond the individual applicant’s case.161 In its reasoning in Ananyev and Others the Court noted that it had found similar violations in a previous judgment already, that the Committee had been occupied with supervising the adoption of general measures since then and that the problem had not been resolved so far.162 Based on the Court’s findings, it is to be concluded that the Contracting State’s failures to repair structural deficiencies, after corresponding previous judgments, constituted violations of the Convention. It is striking that the Court was reluctant to expressly identify these failures as breaches of the Convention as such. In the following, it shall be examined if the Court’s determinations are in accordance with the rules of responsibility for violations of the Convention as elaborated on above.

161 Cf. as to this aspect p 78 above. 162 Ananyev and Others v Russia App nos 42525/07, 60800/08 (ECtHR, 10 January 2012) para 187.

CHAPTER FOURTEEN

PILOT JUDGMENTS: A NEW APPROACH TO REDRESS? 14.1 Questions In the previous Chapters, the Contracting States’ obligations as deriving from the Convention have been examined in general. In the following, it shall be analysed if the Court’s determinations of remedial obligations in its pilot judgments correspond with these obligations. However, this examination shall only seek to find out if the Court’s orders correspond in principle with the Contracting States’ obligations following judgments finding a violation, thus, without a focus on the question if the respondent States were actually obliged to take those specific measures which were ordered by the Court in the respective pilot judgment. This question will be dealt with below in the context of the Contracting States’ discretionary powers in the execution process.163 The Court’s determinations may be differentiated between orders to resolve a systemic problem at its roots, orders to install a domestic remedy in the field of the systemic problem, and orders to grant individual redress to (all) persons affected by a systemic problem. 14.2 Resolving a Systemic Problem at Its Roots 14.2.1 The Court’s Practice in its Pilot Judgments The Court has given orders with a view to resolving a systemic problem at its roots in the respective respondent State’s domestic legal order, in other words, to repair the structural deficiencies which had lead to repetitive violations.164 Thus, it held, for instance in Hutten-Czapska, that the respondent State had to secure “through appropriate legal and/or other measures, … in its domestic legal order a mechanism maintaining a fair balance between the interests of landlords and the general interest of the 163 See Chapter 17.5.2 (p 195). 164 Eg. Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) 4th operative provision and para 238 et seq.



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community …”.165 In Greens and M.T. the Court ordered the respondent State to “bring forward … legislative proposals intended to amend the 1983 Act … and … [to] enact the required legislation …”.166 These determinations apparently aimed at preventing further violations of the Convention by removing those internal structures in the concerned Contracting States which had caused the violations in the first place. In those judgments the Court, for the most part, left the question of installing domestic remedies in the field of a systemic problem (aiming at granting redress for possible future violations) aside.167 The Court’s orders to resolve a systemic problem may be distinguished further: On the one hand, the Court has focused on specific reforms in the national legal system aiming at bringing the domestic legal structures in line with the Convention in order to make sure Convention compliance in the future. The Court appears to have resorted to this approach in case the roots of the repetitive violations, thus, the “weak spots” in the internal legal system had been identified as lying in particular provisions of the national law.168 The judgments in the cases of Hutten-Czapska and Greens and M.T. which are exemplary in that regard have just been mentioned. The systemic problems present in those cases may be described as continuing: Since there were provisions of domestic legislation which were contrary to the Convention, and since they were applied again and again in individual cases, those problems were capable of affecting more and more people in the future, and were thus capable of producing repetitive violations in the narrower sense. On the other hand, in some judgments the Court’s orders focused less on the amendment of particular parts of domestic legislation, but rather, in general terms, on the implementation of the Convention towards all persons belonging to a particular group of citizens: In Broniowski the Court ordered to “secure the implementation” of the property rights in 165 Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) 4th operative provision. 166 Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) 6th operative provision. 167 Cf. Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 239 et seq; Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 110 et seq; cf. also Lukenda v Slovenia App no 23032/02 (ECtHR, 6 October 2005) 5th operative provision. 168 Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 237 and 3rd operative provision; Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 110; Maria Atanasiu and Others v Romania App nos 30767/05, 33800/06 (ECtHR, 12 October 2010) 6th operative provision.

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respect of the remaining Bug River claimants, or to provide them with equivalent redress in lieu.169 In Suljagić the Court held, in short, that the respondent State had to ensure that government bonds were issued, and that any outstanding instalments were paid in the Federation of Bosnia and Herzegovina.170,171 Therefore, the Court ordered that all persons concerned by the same systemic problem had to be granted their Convention rights. Beyond that, the Court did not explicitly order any domestic legal structures to be altered, or any domestic remedy to be set up, to prevent future applications being lodged with the Court. 14.2.2 Compatibility with the Rules of Responsibility In case the Court prescribes measures aiming at resolving a dysfunction in the national legislation of a Contracting State by adjusting its legislation to the requirements of the Convention the Court orders the respondent State to implement the Convention with a view to securing to all persons potentially affected by the same systemic problem the rights of the Convention. 169 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) 4th operative provision. 170 Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) para 56 and 4th operative provision. 171 In Broniowski and in Suljagić the Court dealt with the repercussions of specific historic events, with respect to which the concerned Contracting State had undertaken (compensatory) obligations in circumstances creating rights under the Convention: In Broniowski the respondent State had undertaken to reimburse individuals for expropriations of land in the aftermath of World War II—which it failed to actually accomplish in many cases (Broniowski v Poland App no 31443/96 [ECtHR, 22 June 2004] para 125). In Suljagić the respondent State had committed itself to reimburse the owners of foreign currency savings in former Yugoslavia; they were hindered from withdrawing their money by the respondent State though (Suljagić v Bosnia and Herzegovina App no 27912/02 [ECtHR, 3 November 2009] para 35 et seq.). Those cases concerned, in principle, a closed group of individuals who all had suffered from the consequences of specific past events, and who had been denied compensation, although guaranteed by the concerned Contracting State. In Broniowski this concerned all persons who (or whose legal predecessors) had been forced to leave behind their property when “repatriated” after World War II; in Suljagić it concerned all persons who had deposited currency savings with banks in the SFRY, and who had not yet been allowed to withdraw their money, or had not been compensated. Probably also for that reason the facts at the basis of Broniowski have been described as a “specific” rather than a “systemic” problem (cf. Leach, ‘Approaches’ 162, referring to P.-E. Imbert). Therefore, the primary aim was to induce the respective Contracting States to implement the Convention rights of all (remaining) victims, so that they would not be forced to resort to the Court any longer. Comprehensive redress for all persons who had suffered from the same fate was called for, i.e. measures which were designed to grant the concerned persons their rights under the Convention. Once all remaining victims of violations would have been granted their rights, no further violations of the Convention were to be expected.



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An obligation to adjust domestic legislation to the Convention is acknowledged as such in legal doctrine, and it is acknowledged in particular if a judgment reveals deficiencies in the implementation of the Con­ vention.172 In Scozzari and Giunta the Court had already stated that “a judgment in which the Court finds a breach imposes on the respondent State a legal obligation … to choose, subject to supervision by the Com­ mittee of Ministers, the general and/or, if appropriate, individual measures 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”.173 Thus, by ordering the Contracting States to bring their domestic legislation in line with Convention standards, the Court applied principles which had been acknowledged in its case-law and in legal doctrine.174 In the context of the pilot-judgment procedure it is of minor relevance if this obligation to take general measures is ascribed to the Contracting States’ general obligation to secure the rights of the Convention according to Article 1, or to their undertaking to abide by judgments of the Court pursuant to Article 46 § 1:175 In both cases Convention implementation is called for if deficiencies arise in proceedings before the Court—especially, if the Court explicitly highlights the structural roots of individual acts of ill-treatment by state organs.176 The Court appears to have acted on the assumption that this obligation derives from the binding effect of the judgment itself, thus, from Article 46 § 1, rather than from the general obligation to implement the Convention in Article 1: The Court stated in several pilot judgments that general measures at national level were called for “in execution of the present judgment”.177 Furthermore, as the Court has highlighted on various occasions, structural problems are as a rule capable of leading to further violations of the Convention.178 It is assumed in legal doctrine that the Contracting 172 Meyer-Ladewig, Menschenrechtskonvention 400; apparently also Cremer, ‘Entscheidung’ 1756; similarly Frowein, Villiger, ‘Report’ 50; Klein, ‘Effect’ 708 et seq; cf. Chapter 13.3.4 (p 76 above). 173 Scozzari and Giunta v Italy App nos 39221/98, 41963/98 (ECtHR, 13 July 2000) para 249. 174 Cf. as to those principles Okresek, ‘Artikel 46 EMRK’ 10; Polakiewicz, ‘Execution’ 63; Cremer, ‘Entscheidung’ 1754 et seq. 175 Cf. as to this controversial question p 78 above. 176 Cf. as to respective competences of the Court to include such findings in its judgments in proceedings following individual applications Chapter 16 (p 103) and as to the binding effect of those findings Chapter 16.3.5 (p 128 below). 177 The Court’s approach in that regard is criticised by Cremer, ‘Entscheidung’ 1756 et seq. 178 Cf. for instance Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 111.

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States have to take remedial measures which are necessary and suitable to prevent future similar occurrences of breaches of the Convention.179 It is dispensable to ascertain if this obligation exists only with respect to a potential future ill-treatment of the applicant, thus, the same person whose Convention rights had already been violated once, or also with respect to other persons, thus, in parallel cases:180 On both counts the concerned Contracting State has to take measures to prevent future violations of the Convention. Even if this obligation existed only with respect to future violations of the (same) applicant’s rights, prevention of violations of other persons’ rights would be a (de facto) side-effect. Therefore, it is to be assumed that the Court’s orders to resolve a dysfunction in the national legislation of a Contracting State by adjusting its legislation to the requirements of the Convention correspond, in principle, with the rules of responsibility for violations of the Convention as acknowledged in the Court’s case-law and in legal doctrine. In other cases the Court ordered the implementation of the Convention towards all persons concerned by a systemic problem without explicitly directing the concerned Contracting State to adjust specific domestic legal structures to the Convention.181 Also in those cases the Court’s orders may be interpreted as aiming at structural Convention implementation: In both cases described above there existed legal and/or administrative deficiencies in the respective Contracting State which had lead to actions or omissions depriving, or continuing to deprive, individuals of their rights under the Convention.182 As in cases of specific legislative deficiencies in a Contracting State which had continued to lead to violations of the Convention (eg. Hutten-Czapska, Greens and M.T.), the Court’s determinations may be seen as prescribing structural reforms in the domestic legal system aiming at guaranteeing all concerned persons the rights of the Convention in the respective field, thus, at Convention implementation. Accordingly, in Suljagić the Court held that “the respondent State must

179 Frowein, Peukert, Menschenrechtskonvention 604; Karl, ‘Vollzug’ 46; Okresek, ‘Art 46 EMRK’ 10; Grabenwarter, Menschenrechtskonvention 94 (4th edn; this is not claimed any longer by the authors of the 5th edn). 180 H.-J. Cremer notes that national legislative measures aiming solely at the prevention of future violations against the same applicant would be contrary to the rule of law, which would be inherent in the Convention (Cremer, ‘Entscheidung’ 1754). 181 Eg. Broniowski, Suljagić; cf. Chapter 14.2.1 (p 86). 182 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 189; Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) para 56.



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ensure … that government bonds are issued”183 (emphasis added). In Broniowski the Court also held that the respondent State must, “through appropriate legal measures and administrative practices, secure the implementation“of the respective Convention provision.184 Therefore, those measures may be regarded as aiming at restructuring the domestic legal system with a view to making sure that all state organs comply with the Convention, rather than as obliging the respondent State to take numerous individual acts of redress; they may be seen as measures of Convention implementation—which, as was said in this Chapter, the Contracting States are bound to effectuate in case respective deficiencies arise in a judgment. However, on the other hand, it could also be argued that in Broniowski and Suljagić the Court in fact prescribed numerous individual acts of redress towards all persons concerned by the respective systemic problem; the implications of this interpretation shall be discussed below.185 Therefore, also in case the Court orders the Convention to be implemented towards a whole class of individuals, its determinations can be regarded as corresponding, in principle, with the rules of responsibility for violations of the Convention as acknowledged in the Court’s case-law and in legal doctrine. 14.3 Installing Domestic Remedies 14.3.1 The Court’s Practice in its Pilot Judgments In various judgments, the Court directed the concerned Contracting States to install an effective domestic remedy to avoid repetitive applications being brought before the Court; while refraining from prescribing, in the operative part, measures aiming at the resolution of the systemic dysfunction as such and at its roots.186 As far as can be seen, the Court has not yet 183 Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) 4th operative provision. 184 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) 4th operative provision. 185 Chapter 14.4.2 (p 95). 186 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) 6th operative provision; Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) 4th operative provision; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) 5th operative provision; Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) 5th operative provision; Finger v Bulgaria App no 37346/05 (ECtHR, 10 May 2011) 5th operative provision; Dimitrov and Hamanov v Bulgaria App nos 48059/06, 2708/09 (ECtHR, 10 May 2011) 6th operative provision.

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ordered both the systemic problem to be resolved and a domestic remedy to be installed in the operative part of a pilot judgment. Only in its reasoning the Court has repeatedly stated that “the respondent State’s action should … aim at the resolution of such a dysfunction and at the introduction, where appropriate, of effective domestic remedies in respect of the violations in question”.187 As a result of directing the respondent State to install a domestic remedy, and the respondent State’s corresponding actions of implementation, persons potentially affected by a systemic problem will not have to resort to the Court any longer and will not burden its docket any more.188 The Court repeatedly highlighted that the problems at the basis of those violations189 did not stem from a specific legal provision or a particular lacuna in the respondent States’ legal order, but were large-scale and complex in nature.190 Therefore, the process of resolving the structural problems at the root of the repetitive violations prima facie involved in-depth reforms of domestic structures; the Court has repeatedly spoken of comprehensive and complex measures, possibly of legislative and administrative character, involving various domestic authorities.191 Accordingly, the Court did not focus on measures aimed at resolving the structural problem as such in its determinations in the operative part of the respective judgments, but on installing domestic remedies—which apparently were lacking at that time, since a large number of similar violations had been lodged with the Court in the past.192 At the same time, it left the process of 187 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 127; Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) para 74. 188 Cf. Committee of Ministers, ‘Resolution on judgments revealing an underlying systemic problem’; Committee of Ministers, ‘Recommendation on the improvement of domestic remedies’; Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 191. 189 Mostly either the excessive length of domestic court proceedings (eg. Lukenda v Slovenia App no 23032/02 [ECtHR, 6 October 2005]; Rumpf v Germany App no 46344/06 [ECtHR, 2 September 2010]; Finger v Bulgaria App no 37346/05 [ECtHR, 10 May 2011]; Dimitrov and Hamanov v Bulgaria App nos 48059/06, 2708/09 [ECtHR, 10 May 2011]) or delayed or non-enforcement of final court decisions (eg. Burdov v Russia (No 2) App no 33509/04 [ECtHR, 15 January 2009]; Olaru and Others v Moldova App nos 476/07 and others [ECtHR, 28 July 2009]; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 [ECtHR, 15 October 2009]). 190 Thus the Court in Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 136 and in Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 90. 191 Cf. Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 136 and in Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 90. 192 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) 6th operative provision; Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) 4th operative provision; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR,



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supervising the structural problem to be resolved at its roots to the Committee.193 14.3.2 Compatibility with the Rules of Responsibility The above elaborations on the Court’s determinations to resolve a structural problem at its roots analogously apply to orders to install domestic remedies in the field of a systemic problem.194 The Court’s determinations to set up an effective domestic remedy are to be considered as being in conformity with the rules of responsibility for violations of the Convention. A lack of domestic remedies constitutes a violation of Article 13 and represents, therefore, a deficiency in the implementation of the Convention which is potentially capable of provoking similar violations in the future— be it towards the same applicant or towards any other individual.195 By ordering domestic remedies to be installed in the respective field, the Court thus prescribed measures aiming at the implementation of the Convention, and at preventing future violations of the Convention (i.e. of Article 13). The Contracting States are obliged to take measures of implementation of prevention after a judgment in case structural deficiencies have come to light; this obligation is ascribed to either Article 1 or to Article 46 § 1. Therefore those orders are also best described as general measures targeting at full implementation of the Convention and at preventing 15 October 2009) 5th operative provision; Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) 5th operative provision; Finger v Bulgaria App no 37346/05 (ECtHR, 10 May 2011) 5th operative provision; Dimitrov and Hamanov v Bulgaria App nos 48059/06, 2708/09 (ECtHR, 10 May 2011) 6th operative provision. 193 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 137: “The Committee of Ministers is better placed and equipped to monitor the necessary reforms to be adopted by Russia in this respect”; similarly in Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) para 57; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 90; Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) para 71; Finger v Bulgaria App no 37346/05 (ECtHR, 10 May 2011) para 120; Dimitrov and Hamanov v Bulgaria App nos 48059/06, 2708/09 (ECtHR, 10 May 2011) para 115. Only the Court’s judgment in Lukenda deviates to a certain extent from that classification: although the case concerned the structurally excessive length of domestic court proceedings the Court did not merely order an effective domestic remedy to be set up by the respondent State, as it did in other length-of-proceedings-cases, but to “secure the right to a trial within a reasonable time” (Lukenda v Slovenia App no 23032/02 [ECtHR, 6 October 2005] 5th operative provision). 194 Cf. Chapter 14.2.2 (p 88). 195 For instance Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 193; Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) para 63; Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 111. Cf. again as to the question of the focus of preventive measures—either exclusively on the applicant, or also on other persons—Chapter 13.3.4 (at p 78) above.

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future similar violations—therefore, as corresponding with the rules of responsibility for violations of the Convention. 14.4 Summarized Redress 14.4.1 The Court’s Practice in its Pilot Judgments In addition to the Court’s orders to resolve a structural problem, or to install a domestic remedy, the Court ordered the respondent States to grant redress to (all) persons concerned by the respective systemic problem in several pilot judgments. Accordingly, in several pilot judgments the Court determined that the concerned Contracting States have to grant adequate and sufficient redress “to all victims” of the respective violation of the Convention whose applications were already pending before the Court at the time it delivered its pilot judgment.196 In those judgments the Court noted in that regard that such redress “may be achieved through implementation proprio motu by the authorities of an effective domestic remedy in these cases or through ad hoc solutions such as friendly settlements with the applicants or unilateral remedial offers of redress in line with the Convention requirements”.197 Also the Court’s orders in Broniowski and Suljagić may be interpreted as obliging the respondent States to grant individual redress towards all concerned persons.198 In Broniowski the Court ordered the respondent State to “secure the implementation of the property right in question in respect of the remaining Bug River claimants or provide them with equivalent redress in lieu”.199 In Suljagić the Court obliged the respondent State to ensure, inter alia, “that government bonds are issued in the Federation of Bosnia and Herzegovina”200—apparently to all persons concerned, as it is 196 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) 7th operative provision; Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) 5th operative provision; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) 6th operative provision; Ananyev and Others v Russia App nos 42525/07, 60800/08 (ECtHR, 10 January 2012) 8th operative provision. 197 Eg. Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) para 61. 198 Cf. Chapter 14.2.2 (p 88) already as regards these judgments. 199 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) 4th operative provision. 200 Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) 4th operative provision.



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to be added.201 Therefore, the measures required to grant the concerned persons their rights under the Convention may be conceived as individual acts of redress towards all persons concerned, with the respondent States’ obligation to take those measures being globally determined by the Court in the pilot judgment. 14.4.2 Compatibility with the Rules of Responsibility In the judgments just described, the Court’s determinations may be interpreted less as aiming at structural reforms of the domestic legal system intended to adjust the latter to the Convention so that compliance is ensured in the future. They may rather be understood as orders to take individual steps of Convention implementation towards all individuals belonging to the class of citizens which had been identified by the Court as having been denied their rights under the Convention due to the systemic problem. This raises questions as to the conformity of the Court’s practice with the remedial obligations of the Contracting States as deriving from the Convention. It is to be noted that as a rule, except for the “pilot”-applicant, persons concerned by a systemic problem are not party to the respective pilot-judgment procedure: It is characteristic for this procedure that the Court does not, for instance, join applications complaining about similar violations,202 which would make all applicants party to proceedings, and which would create remedial obligations towards them if the Court found a violation of their Convention rights. Instead, the Court considers only one single application and only finds a violation of the “pilot”-applicant’s rights—whereas not of the remaining persons affected by the systemic problem.203 Furthermore, individual acts of redress—as ordered by the Court in the just cited judgments—are not to be regarded as “general 201 In those cases the Court dealt with the legal repercussions of specific past events; all concerned persons constituted, in principle, a closed group of individuals who had been denied their rights under the Convention (cf. Broniowski v Poland App no 31443/96 [ECtHR, 22 June 2004] para 189: “identifiable class of citizens, namely the Bug River claimants”). Consequently, if all those persons had been granted their right to property (by way of satisfying all claims of the Bug river-victims, or, respectively, of the owners of foreign currency savings in Bosnia and Herzegovina), the problem would have been resolved exhaustively and no further occurrences of treatments contrary to the right to property would have been to be expected. 202 Cf. Rule 42 of the Rules of Court. 203 Eg. Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) 2nd operative provision; Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) 2nd operative provision.

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measures” in the common understanding of the rules of responsibility for violations of the Convention, even if the Court globally orders those individual acts to be taken towards a large number of persons. Considering this, it is questionable if it is for the Court to determine remedial obligations towards other persons than the “pilot”-applicant in its pilot judgments. Interpreting the Court’s determinations as global orders to take similar individual remedial measures leads to questions as to the scope of its judgments, in particular as regards powers of the Court to prescribe remedial measures with respect to individuals who are not party to the respective proceedings. It could be argued that such orders lay outside the scope of the binding effect of judgments, considering that this binding effect is partly described as being limited to the relation between the concerned Contracting State and the respective individual applicant, while not extending to other individuals who were not party of the proceedings before the Court.204 True, since persons affected by a systemic problem will have suffered a violation of their Convention rights, there will be remedial obligations of the Contracting State concerned to provide reparation or to affect cessation towards those persons—thus to take the individual measures of redress which the Court prescribed.205 However, the Court has not considered their cases individually when delivering a pilot judgment towards the “pilot”-applicant. Towards all other persons affected by the systemic problem no violation of their Convention rights has been bindingly established by the Court in a judgment—which alone would create the remedial obligations of the Contracting States concerned according to Article 46 § 1. However, it is to be assumed that there is no substantial difference  between directing a Contracting State to adjust its domestic legal structures to the Convention, and directing it to grant redress to all individuals who belong to a particular class of citizens: In both cases the concerned Contracting State will have to take “structural” actions in order to make sure that the concerned persons may obtain redress; at least, the Court leaves it to the respondent States to decide how to effectuate this order. As was said above, the Court’s orders in Broniowski and Suljagić may

204 Klein, ‘Effect’ 708 and 711. Partly Concurring, Partly Dissenting Opinion of Judge Zupančič in Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006). 205 Cf. as to the obligation to provide reparation and to affect cessation Leeb, Umsetzung 13 et seq. and 27 et seq; Polakiewicz, Verpflichtungen 63 et seq; Leeb, Umsetzung 27 et seq; cf. also Article 30 of the Draft Articles and ILC, ‘Draft Articles with Commentaries’ 88 et seq.



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as well be understood as obliging the respondent States to make sure, within their domestic legal order, that all concerned persons are granted their Convention rights, thus to take general remedial measures. This could also be argued with respect to the other cases mentioned above concerning, in the present context, non- or delayed enforcement of domestic judgments (Burdov, Olaru and Yuriy Nikolayewich Ivanov). Since the problem of a limitation of the scope of the Court’s judgments does not exist in case the Court orders a Contracting State to take general measures (in terms of measures aiming at adjusting the domestic legal structures to the Convention requirements), it is mostly a question of how the Court phrases its orders or, respectively, how its orders are interpreted. Since they may be understood as directing the Contracting States to take general measures, they should be considered this way because it undoubtedly corresponds with the Convention. Furthermore, the problem of the scope of the binding effect of judgments is alleviated by the fact that the Court neither individually identified other persons affected by the systemic problem, nor elaborated on the soundness of their claims. Therefore, it was for the respective Contracting State to decide on these questions (at least until the State’s course of action in that regard was brought before the Court as a new allegation of a violation of the Convention). Consequently, also the Court’s orders to implement the Convention towards (or to grant redress to) all persons concerned by a systemic problem can be interpreted as being in accordance with the rules of responsibility for violations of the Convention. Objections due to the limited scope of the binding effect of judgments cannot be denied fully, but may be avoided by interpreting the Court’s orders as obliging the concerned Contracting States to take general remedial measures. 14.5 Conclusion In the light of the foregoing, it is to be concluded that the remedial measures usually prescribed by the Court in its pilot judgments correspond with the rules of responsibility for violations of the Convention as are acknowledged in the Court’s case-law and in legal doctrine. Throughout, the Court confined itself to ordering remedial measures which correspond, in principle, with the “traditional” remedial obligations following a judgment finding a violation. Therefore, in the author’s opinion the Court’s approach in the pilot-judgment procedures does not reflect a distinguishable new approach to redress as regards the kind of measures which have

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been ordered by the Court. However, they do constitute a new approach as far as the Court’s explicit determinations of general measures is concerned. It will be analysed in the following if the Court’s approach of explicitly determining the Contracting States’ remedial obligations is in conformity with the Convention.

PART FIVE

THE COURT’S COMPETENCES

CHAPTER FIFTEEN

OVERVIEW This examination seeks to assess the conformity of the Court’s course of action, as applied in the pilot-judgment procedures, with the Convention; it seeks to ascertain if the Court may legitimately take the procedural steps which are characteristic for the pilot-judgment approach. First, the question arises if the Court is empowered to comprehensively deal with the implications of a widespread human rights problem in a Contracting State in the framework of the individual complaints procedure (Chapter 16): In the Court’s case-law as well as in legal doctrine there are indications that, when dealing with an individual application, the Court has to confine its attention to the applicant’s case. In other words, it is argued that the Court is only empowered to decide if the Convention has been violated with respect to the individual applicant, and if the applicant may claim just satisfaction. Secondly, it is to be asked if the Court is empowered to assess which remedial steps the respective Contracting State is required to take in its domestic legal system, and if the Court is empowered to determine remedial obligations in the operative part of a judgment (Chapter 17). The Court has generally refused to prescribe remedial measures before the first pilot judgment—it shall be ascertained if competences of the Court to include such determinations derive from the Convention nevertheless. This will involve an examination if, and under which conditions, the Court’s determinations may at all be regarded as binding (Chapter 17.2). Thereupon, the Court’s case-law as regards determinations of remedial measures prior to the first pilot judgment shall be analysed (Chapter 17.3). If the Court may determine remedial measures in its judgments will, first of all, depend on the existence of Convention provisions which may be interpreted as empowering the Court to determine remedial obligations—if there are such provisions shall be analysed in Chapter 17.4. If the Convention indeed empowers the Court to determine remedial measures will also depend on Convention principles which may militate against respective powers of the Court, namely the Contracting States’ scope of discretion when executing judgments finding a violation (Chapter 17.5), and exclusive powers of the Committee in the process of supervising execution of judgments (Chapter 17.6).

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Thirdly and finally, the question arises if the Court is empowered to assess general remedial measures taken by a Contracting State after a pilot judgment, either in friendly settlement decisions or in decisions striking applications out of the Court’s list of cases (Chapters 18 and 19). Also in this regard it is to be asked if there are Convention provisions which may basically be interpreted as empowering the Court to do so, and if exclusive powers of the Committee are opposed to such an interpretation.

CHAPTER SIXTEEN

PILOT JUDGMENTS AND THE INDIVIDUAL COMPLAINTS PROCEDURE 16.1 The Court’s Focus of Examination In the following it is to be examined if the Court may deal comprehensively with a structural human rights problem in a Contracting State in proceedings following an individual application under Article 34.1 Beforehand, it is to be clarified, which aspects this “structural” approach in the various pilot-judgment procedures in fact involved, in other words, which focus the Court applied in its examination of the “pilot”applications. In all pilot judgments the Court exceeded the sphere of the ill-treatment inflicted on the respective individual applicant, and included, to a greater or lesser extent, the structural background of these detrimental actions in its assessment of the case. Such an extended focus derives from the intention of the pilot-judgment procedure to resolve widespread human rights problems in Contracting States most effectively.2 The Court’s extended approach becomes most obvious in the Court’s findings on the existence of a systemic problem in the operative part of its pilot judgments, and in its indications of required remedial measures to resolve this problem. This approach manifests also in the Court’s participation in the supervision of the execution of its pilot judgments, as done by way of deciding on friendly settlements reached between the “pilot”-applicant and the respondent State, or by way of striking similar applications out of its list of cases.3 Several pilot judgments indicate that the Court’s examinations went beyond of what would have been required in order to decide on the

1 Cf. as to this aspect of the pilot-judgment procedure in legal literature Breuer, ‘Individualbeschwerde’ 121; Schmahl, ‘Piloturteile’ 369; cf. also Oellers-Frahm, ‘Entlastung’ 1027. 2 Cf. as to the intentions behind the pilot-judgment procedure the Committee’s invitation of the Court to identify in its judgments finding a violation of the Convention what it considers to be an underlying systemic problem and the source of that problem: Committee of Ministers, ‘Resolution on judgments revealing an underlying systemic problem’. 3 Cf. as to these aspects Chapters 18 (p 238) and 19 (p 257).

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individual case, i.e. that the Court’s examinations of the structural problems were not prompted by the individual application of the “pilot”applicant, but by the Court’s intention to decide on a structural problem on occasion of this application. The Court’s findings of structural problems in several pilot judgments were not a mere conclusion of its examination of the individual applicant’s case; the existence of the structural problem would not have emerged equally from the Court’s examinations if it had confined its attention to the applicant’s case. The Court rather took the opportunity of the applicant’s case to decide generally and as such on a widespread problem, and thus used proceedings following individual applications to examine and to decide on structural deficiencies in the implementation of the Convention.4 This is particularly clear in Burdov, where, in a first step, the Court’s examination of the alleged ill-treatment of the applicant was confined to the facts of the applicant’s case and to the domestic procedures the latter had been party to.5 The Court dealt with the structural roots of the violations suffered by the applicant exclusively in a separate part of the judgment—thus in addition to its examination of the applicant’s complaint.6 In Olaru and Others the structural roots of the applicants’ ill-treatments were also exclusively elaborated on in the section of the judgment in which the Court elaborated on the application of the pilot-judgment procedure, while the assessment of the ill-treatment complained of by the applicants was indeed confined to the particular turn of events in the applicants’ cases.7 The Court’s extended focus of examination also emerges in the light of its assessment of the existence of an effective remedy in these judgments: Since the Court’s overload resulting from repetitive applications would diminish if the Contracting States installed domestic remedies in the field of the structural problem, the Court has sought to include the aspect of (a lacking of) domestic remedies in its pilot

4 Cf. Judge Zupančič in his Partly Dissenting Opinion in Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006), who asks: “Have we indeed expanded the scope of jurisdiction to the extent that we may now pronounce with binding effect erga omnes and not only on particular cases immediately before us?”. 5 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 72–86. 6 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 131 et seq. 7 Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) para 38–41 and 54–57. The Court’s reference to previous findings of similar violations when examining the applicant’s alleged ill-treatment (para 41) seems to have only the purpose of applying a summarized procedure, and not of elaborating on the structural roots of the individual violation when examining the applicant’s case.



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judgments.8 Occasionally, the Court examined if there existed a domestic remedy—although the lacking of domestic remedies had not even been alleged by the applicant.9 Partly, these examinations were conducted in rather general terms instead of being focused on the particular turn of events in the (“pilot”-) applicant’s case.10 This may lie in the nature of monitoring compliance with Article 13. Nevertheless, for instance, the conclusion in the context of the assessment of an individual applicant’s case, that “there was no effective remedy … in the event of … prolonged non-enforcement of judicial decisions delivered against the State or its entities”11 indicates that the Court focused strongly on the overall conditions as regards effective remedies in the respective field, i.e. on the structural shortcomings at the root of the numerous applications it had to deal with in the respective context. This shows that the Court has conducted specific examinations of the structural roots of repetitive applications, and that it conducted these examinations in addition to an assessment of the individual violations suffered by the applicants. In other cases, the structural roots of individual violations indeed emerged from the examination of the turn of events in the applicant’s case, and not only from additional examinations of the Court which specifically focused on the application of the pilot-judgment procedure.12 In these cases the Court also noted, for instance, that it is “inherent in the Court’s findings (on the applicant’s allegations, author’s remark) that the violation of the applicant’s right … originated in a widespread problem”.13 In particular in the early pilot judgments, the structural causes became visible in the course of the examination of the applicant’s case already. However, in these cases it also appears that the Court designed its examinations of the applicant’s ill-treatments in a way which allowed it to decide on the structural problem as such, thus, that it extended its examination of the applicant’s allegations to the structural background of the   8 This aspect has also been emphasised by the Committee: cf. the Committee’s ‘Recommendation on the improvement of domestic remedies’, where it emphasises that “the improvement of remedies at national level, particularly in respect of repetitive cases, should also contribute to reducing the workload of the Court”.    9 Cf. for instance Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 89. 10 Cf. Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 117.  11 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 117. 12 Eg. Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) para 49 et seq; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 55 et seq. 13 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 189.

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individual ill-treatment of the applicant. In Broniowski and HuttenCzapska, the Court examined the structural situation in general, with subsequently applying its conclusions to the applicant’s case.14 Without it being possible to determine ultimately if this focus on domestic legal structures was indispensable for deciding on the individual case, or if it was specifically prompted by the pilot-judgment approach,15 it is beyond doubt that the Court proceeded on its general examination of the structural background of the individual violations when elaborating on the implications of the pilot-judgment procedure.16 Therefore, also in these cases the Court conducted an extended examination of the applicants’ allegations, taking into account the structural implications of the violations they allegedly suffered. It may be summarized that in all pilot judgments the Court exceeded the scope of examination which would have been necessary to decide on the “pilot”-applicant’s allegations. On several occasions, the Court’s assessment of the systemic problem underlying an individual violation would have been dispensable for an assessment of the individual applicant’s case, and was thus solely prompted by the pilot-judgment procedure. On other occasions, the existence of a systemic problem derived indeed from the assessment of the facts of the individual case, which was, however, conducted in a strikingly extensive way. In these cases the Court’s intention seems to have been to decide in fact on the systemic problem as such, with merely applying its conclusions to the individual complainant subsequently. Therefore, the Court used the instrument of the individual complaints procedure to decide on structural human rights problems as such. In the following it is to be analysed if the Court is competent to adopt such a course of action. This analysis shall focus, initially, on indications in the Convention for a restriction of the Court’s competences to the facts of the applicants’ individual cases—which would support the assumption that the Court’s structural examination in the pilot judgments was 14 Eg. Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 162, 168 et seq., 171 et seq; Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 168, 178, 194 et seq, 202, 220, 224 et seq. 15 Especially since the Court examines the domestic factual and legal background as a rule (cf. Grabenwarter, Pabel, Menschenrechtskonvention 94), even if there is no connection to a systemic problem whatsoever—as it is indispensable for deciding if an interference was prescribed by law, and as it might also be necessary in order to decide if the interference was necessary in a democratic society (cf. in particular § 2 of Articles 8–11). 16 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 189; Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 235.



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contrary to the Convention (16.2). Thereupon, it shall be ascertained if the Convention may nevertheless be interpreted as empowering the Court to focus on systemic problems in proceedings following individual applications (16.3). 16.2 Restrictions on the Court’s Competences? There are indications in the Convention militating against the assumption of competences of the Court to comprehensively deal with systemic problems in Contracting States. As was just concluded, it is inherent in the pilot judgment procedure that the Court exceeded an examination of the very facts of the individual applicant’s case when dealing with a structural human rights problem. This is most clear in cases where the examination of the structural problem was conducted in addition to an examination of the applicant’s ill-treatment; furthermore, it is obvious that the Court’s directions on how to resolve the structural problem, in the operative part of the pilot-judgments, were not indispensable to decide on the individual complaint and thus specifically prompted by the pilot-judgment approach. Thus, the pilot-judgment procedure may be perceived as an approach to utilize the individual complaints procedure to decide generally on a widespread human rights problem in a Contracting State. In other words, the Court decided, on occasion of assessing an individual application, on a failure of a Contracting State to fully implement the Convention. Doubts as to the Court’s competences to carry out such an examination are initially raised by the Court’s case-law itself, where it has repeatedly been stressed that in proceedings originating in an individual application the Court had as a principle, and without losing sight of the general context, to confine its attention as far as possible to the issues raised by the concrete case before it.17 Similarly, the Court defines its task under the Convention not to review a legal provision as such, but the manner in which that provision was actually applied to the applicant.18 The Court 17 Adolf v Austria App no 8269/78 (ECtHR, 26 March 1982) para 36; Minelli v Switzerland App no 8660/79 (ECtHR, 25 March 1983) para 35; Bönisch v Austria App no 8658/79 (ECtHR, 6 May 1985) para 27; F. v Switzerland App no 11329/85 (ECtHR, 18 December 1987) para 27; Olsson v Sweden (No 1) App no 10465/83 (ECtHR, 24 March 1988) para 54; Schmahl, ‘Piloturteile’ 377. 18 Deweer v Belgium App no 6903/75 (ECtHR, 27 February 1980) para 40; Guzzardi v Italy App no 7367/76 (ECtHR, 6 November 1980) para 88; Young, James and Webster v The United Kingdom App nos 7601/76, 7806/77 (ECtHR, 13 August 1981) para 53; Sahin v Germany App no 30943/96 (ECtHR, 8 July 2003) para 87; Sommerfeld v Germany App no 31871/96 (ECtHR, 8 July 2003) para 86; cf. Ress, ‘Einzelfallbezogenheit’ 720.

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has also emphasised that the Convention did not institute for individuals an actio popularis for the interpretation of the Convention. Instead, it was required that an individual applicant claims to have been actually affected by a violation.19 Accordingly, for instance in Bönisch, the Court confined its examination of the individual application to the facts of the concrete case—although the violation was not the result of an excessive measure of domestic courts or administrative authorities, but derived from an application of domestic legislation, which had in fact prescribed the violating acts.20 In that case, the Court accordingly rejected the applicant’s allegations that the violations he had suffered ensued from these provisions.21 True, in several judgments the Court found a violation of the Convention by the existence of a legal provision itself if that same provision had affected the applicant directly and in the absence of an individual measure of implementation. However, in these judgments the Court also emphasised as a basic rule (which was repeated in later judgments) that it must not undertake an abstract review of rules, but that it must, as far as possible, confine its examination to the manner in which the legal provision had been applied in particular circumstances.22 Therefore, it might be described as a principle of the Court’s case-law before the first pilotjudgment procedure that the Court rejected applicants’ claims to take into consideration the general legal background of the violations they had allegedly suffered. In this respect, the Court’s case-law is corroborated by several legal commentators.23 It is argued that the individual complaints procedure was not intended for dealing with widespread human rights violations resulting from a failure to fully implement the Convention, but that it was rather designed to cope with individual cases of an alleged illtreatment.24 W. Okresek notes that the development of a human rights standard was a result, and not the purpose of the individual complaints procedure, with the main object of the Convention being to maintain the rights of the individual applicant.25 According to J. Polakiewicz, G. Ress 19 Klass and Others v Germany App no 5029/71 (ECtHR, 6 September 1978) para 33; likewise Frowein, Villiger, ‘Report’ 28 et seq; Callewaert, ‘Judgments’ 727. 20 Bönisch v Austria App no 8658/79 (ECtHR, 6 May 1985). 21 Bönisch v Austria App no 8658/79 (ECtHR, 6 May 1985) para 27. 22 Marckx v Belgium App no 6833/74 (ECtHR, 13 June 1979) para 27 and 58. 23 Cf. as to the opinion of other authors Chapter 16.3.3 (p 120). 24 Cf. Grabenwarter, ‘Grundrechtsverhältnis’ 203 et seq; cf. Schmahl, ‘Piloturteile’ 378 et seq. with further reference. 25 Okresek, ‘Umsetzung’ 169.



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and J. Meyer-Ladewig, the subject of a declaratory judgment of the Court was basically a violation of the Convention by a specific conduct of a Contracting State in a concrete individual case; the subject-matter of proceedings was a concrete historic event which was submitted to the Court.26 This point of view indicates a restriction of the individual complaints procedure to an examination of the applicant’s ill-treatment. W. Sadurski refers to the traditional perception which was common before the pilotjudgment procedure, according to which the Court’s role was limited to considerations of acts and decisions, rather than of laws allegedly underlying the latter.27 Several legal commentators thus concur with the Court in its approach of refraining from taking into account the general legal dimensions of an individual violation in the respondent State. It is to be added that the right of individual applications was highly controversial when the Convention was drafted.28 An obligatory submission of the Contracting States under the individual complaints procedure had not come into existence before the entry into force of Protocol No. 11 in 1998. This may be invoked in support of a restrictive interpretation of the Court’s competences in the context of the individual complaints procedure: Since the Contracting States could not agree to establish a comprehensive right to individual application in the first place, it is to be assumed that the provisions establishing the individual complaints procedure are to be interpreted narrowly. They could be interpreted as not conceding to the Court the competence to deal comprehensively with shortcomings concerning the implementation of the Convention in  a  Con­tracting State following an individual application, but as merely empowering the Court to assess if the particular treatment of the individual applicant was contrary to the Convention.29 This even more, considering that international monitoring will, as a rule, raise questions as to the legitimate limits of an interference with state sovereignty.30 Procedural approaches to deal with shortcomings in the implementation of the Convention in a Contracting State may be regarded as more sensitive than the assessment of individual measures affecting a single applicant. It might be argued that, by establishing a right of individuals to apply to the

26 Polakiewicz, Verpflichtungen 38; Ress, ‘Wirkung’ 232; Meyer-Ladewig, Menschenrechtskonvention 395 and 400. Cf. Chapter 13.3.1 (p 72) already. 27 Sadurski, ‘Partnering’ 412. 28 Ohms, ‘Artikel 34 EMRK’ 3; cf. Grote, ‘Entstehungsgeschichte’ 37. 29 Cf. Schmahl, ‘Piloturteile’ 378. 30 Cf. Nowak, Introduction 27.

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Court if they have allegedly been treated in conflict with their rights, the Contracting States did not grant the Court any more competences than to assess if this allegation is accurate in the concrete individual case. Certainly, this argument is to be treated with due reservation since the Convention does not contain a rule according to which its provisions are to be interpreted, in cases of doubt, as restricting the Contracting States’ sovereignty to the least extent possible.31 Furthermore, it may be argued that Article 34 was designed for assessing an alleged ill-treatment of individuals—rather than of shortcomings in the implementation of the Convention and, in particular, of domestic law being in conflict with the Convention.32 Arguments for this point of view may be deducted from Article 34, read in conjunction with Article 41: From the drafting history of Article 41 it could be derived that a “violation” in the sense of Article 41 means the applicant’s detrimental treatment, rather than a structural human rights violation: As originally adopted by the signatories to the Convention, Article 41 (previously Article 50) dealt with the Court’s finding “that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is … in conflict with the obligations arising from the present Convention” (emphasis added). This indicates a specific, individual legal act to be the subject of examination in the individual complaints procedure. Although the wording of this provision was changed by Protocol No. 11, the drafting history of this Protocol indicates that a change in the meaning of Article 50, respectively Article 41, was not intended by the Contracting States. The new text of Article 41 was only supposed to be a simplified and shortened version of the former Article 50 of the Convention.33 Therefore, by “violation”, Article 41 still means a decision or a measure taken by an authority of a Contracting State, rather than structural deficiencies in the implementation of the Convention. Acting on the assumption that the notion of a “violation” in Article 34 has the same meaning as in Article 41—while Article 33 speaks of a “breach” of the Convention—it could be concluded that the legitimate subject of the Court’s examination under Article 34 was a decision or other individual measure taken by the respondent State

31 Cf. Cremer, ‘Konventionsinterpretation’ 169; Matscher, ‘Interpretation’ 66. 32 Grabenwarter, ‘Grundrechtsverhältnis’ 203 et seq; Schmahl, ‘Piloturteile’ 378 et seq. 33 Council of Europe, ‘Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby’ para 97 accessed 28 October 2012; Karl, ‘MRK Artikel 41’ 5.



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which violated the applicant’s rights under the Convention. Thus, also an interpretation of the provisions governing the individual complaints procedure in their context supports a restriction on the Court’s competences. In addition, the notion of “violation” in Article 34 (and Article 41) may not only be referred to as regards the legitimate scope of the individual complaints procedure in general, but also with a view to the Court’s being bound, in principle, to the allegations raised in an individual application.34 In this respect, the relation between Articles 32 and 34 is to be highlighted: According to Article 32, the Court has comprehensive jurisdiction in all matters which are referred to it as provided for in Article 34, which refers to the criteria of application as implied in Article 34—most prominently, the status of the applicant as being a victim of a violation. If, as was just elaborated on, the term “violation” is to be understood as the concrete ill-treatment of the applicant, rather than a Contracting State’s failure to fully implement the Convention, the applicant may solely complain about the ill-treatment he had suffered, however, not about a Contracting States’ negligence in the implementation process. If, in further consequence, the Court’s jurisdiction was restricted to those matters which have been referred to it in accordance with Article 34, the Court would have no jurisdiction as far as an alleged systemic dysfunction is concerned—since an individual applicant may not complain about such a systemic dysfunction and since the Court is bound to the complaints raised in an application. Apart from those sources of doubt regarding competences of the Court to examine structural deficiencies, it is well-established that the Court is competent to decide on structural violations of the Convention if the matter is brought before it under the inter-state complaints procedure according to Article 33.35 In this context, the Court is competent to decide on “any alleged breach of the provisions of the Convention”.36 Such a breach is not only constituted by individuals being affected by measures of domestic authorities or courts which are in conflict with the rights of the Convention. Instead, a breach is also established by domestic legislation which introduces, directs or authorises such measures or, respectively, by an accumulation of breaches amounting to a practice incompatible with the Convention.37 The existence of such a breach may be alleged in an application raised under Article 33 and may subsequently be assessed by 34 Meyer-Ladewig, Menschenrechtskonvention 31. 35 Cf. Schmahl, ‘Piloturteile’ 377. 36 Thus the wording of Article 33. 37 See above Chapter 12.2 (p 58).

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the Court.38 The applicant State is not required to allege any ill-treatment of individuals, but may complain about domestic legislation or practices contrary to the Convention in another Contracting State in the abstract.39 Therefore, the inter-state complaints procedure is described as allowing the Contracting States to raise an actio popularis.40 As a result, when identifying the pilot-judgment procedure as an approach to deal with structural deficiencies in a Contacting State’s legal order, it is to be noted that such deficiencies may be the subject of inter-state complaints procedures. In that regard, J. Polakiewicz contrasts the individual complaints procedure, which did not allow an (abstract) review of norms, with the interstate complaints procedure, where violations of the Convention by way of the existence of domestic legislation could be alleged.41 In the light of the foregoing, it could be argued that the inter-state complaints procedure was the (only) intended instrument to deal with structural shortcomings leading to numerous violations of the Convention in individual cases. Considering these aspects, it could be claimed that the Court had to refrain from assessing and dealing with structural shortcomings representing a failure to fully implement the Convention by a Contracting State in proceedings following an individual application. Structural deficiencies in the implementation of the Convention could be said to be an exclusive subject of the inter-state complaints procedure. In the following it shall be examined if these considerations are to be followed; in particular, if the provisions governing the individual complaints procedure may be interpreted as empowering the Court to assess structural problems in proceedings following individual applications. 16.3 Powers of the Court in the Individual Complaints Procedure 16.3.1 Further Analysis of the Court’s Case-Law When examining the Court’s powers in the individual complaints procedure, the Court’s case-law in this respect shall be analysed as a first step. 38 Cf. Denmark, Norway, Sweden, The Netherlands v Greece (The Greek Case) App nos 3321/67 and others (ECtHR, 5 November 1969) (Report of the Sub-Commission) para 251; Denmark v Turkey App no 34382/97 (ECtHR, 8 June 1999) part I of the Court’s elaborations on The Law. 39 Van Dijk and others, Theory and Practice 47. 40 Ohms, ‘Artikel 33 EMRK’ 5, 11 et seq; Matscher, ‘Garantie’ 424; Grabenwarter, Pabel, Menschenrechtskonvention 46. 41 Polakiewicz, Verpflichtungen 40 and 48.



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As was stated above, the Court has repeatedly refused to go beyond an examination of the facts of the applicant’s ill-treatment and to focus on the domestic legal structures underlying it.42 However, the Court itself has not adhered consequently to its principle, as is to be examined in the following. In Abdulaziz, Cabales and Balkandali the Court extensively examined the legal structures behind the alleged violation of the Convention, and concluded that the discrimination of which the applicants were victims “was the result of norms that were in this respect incompatible with the Convention”.43 In Inze the Court also assessed if domestic legislation was “contrary to the Convention”.44 In further cases the Court commented on legal provisions as regards their conformity with the Convention.45 While the Commission, in principle, also refused to consider whether provisions of domestic law were or were not compatible with the Convention in the abstract, it stated, for instance, that it “nonetheless remains true that the problems raised by the applicants arise from the application of the general provisions on criminal procedure and not from a mistaken or incomplete application made in the particular case.”46 Thus, already before the first pilot judgment was issued, the Court had elaborated on the structural causes of individual violations of the Convention on several occasions. However, it must be noted that the Court had not yet included the aspect of a large number of persons being affected by a structural problem in its examinations. Furthermore, in these early judgments, the Court merely pointed to the structural roots of the individual violations, but did not derive specific obligations of the Contracting States to take general remedial measures aimed at resolving a structural human rights problem from it.47 Still, in the light of these judgments, 42 Cf. again Adolf v Austria App no 8269/78 (ECtHR, 26 March 1982) para 36; Minelli v Switzerland App no 8660/79 (ECtHR, 25 March 1983) para 35; Bönisch v Austria App no 8658/79 (ECtHR, 6 May 1985) para 27; F. v Switzerland App no 11329/85 (ECtHR, 18 December 1987) para 31; Olsson v Sweden (No 1) App no 10465/83 (ECtHR, 24 March 1988) para 54. 43 Abdulaziz, Cabales and Balkandali v The United Kingdom App nos 9214/80 and others (ECtHR, 28 May 1985) para 78 et seq., para 93. 44 Inze v Austria App no 8695/79 (ECtHR, 28 October 1987) para 43 et seq; cf. in this respect J. Polakiewicz, who highlights that the Court’s assessment of the case was in fact not focused on the individual applicant’s case, but on the legal provisions at its basis (Polakiewicz, Verpflichtungen 43). 45 Winterwerp v The Netherlands App no 6301/73 (ECtHR, 27 November 1981) para 45; X and Y v The Netherlands App no 8978/80 (ECtHR, 26 March 1985) para 27; cf. also Bottazzi v Italy App no 34884/97 (ECtHR, 28 July 1999) para 22. 46 Colozza and Rubinat v Italy (1985), cited after Frowein, Villiger, ‘Report’ 51. 47 Cf. Schmahl, ‘Piloturteile’ 477.

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the Court’s approach of examining the broader implications of an individual ill-treatment, as done in the pilot-judgment procedures, can not be regarded as fully unprecedented, and is not in sharp conflict with the Court’s previous case-law. Apart from that, a closer analysis of the Court’s case-law reveals that the Court’s refusal to examine legal provisions as such, and its exclusive focus on the facts of the particular case, was in fact prompted by various factual constellations which were not present in the pilot-judgment procedures, which also leads to the conclusion that these previous judgments are not in conflict with the pilot-judgment approach: First, by ruling out its competence to decide on any kind of an actio popularis, thus, by denying individuals the right to complain against a national law in the abstract,48 the Court merely stressed the requirement of the applicant being a victim of a violation according to Article 34. Only in case an applicant is personally affected by an illegitimate act of a Contracting State, i.e. only provided that, for instance, a legal provision has been applied to the applicant’s detriment, the Court is competent to decide on the matter. However, this principle is not in conflict with the Court’s approach in the pilot-judgment procedures: All pilot judgments were delivered upon complaints of individuals who were undoubted victims of violations of the Convention.49 Therefore, in the context of the pilot-judgment procedure it remains to be asked if the Court, on occasion of an individual application of an actual victim of a violation, may comprehensively examine the legal structures behind the facts of the individual case and, as the case may be, find the existence of a structural problem.50 Secondly, and further approaching the key question of this examination, the Court has refused to assess domestic legislation itself, if the domestic authorities’ detrimental measures were not determined by a national legal provision, but were rather caused by the way this provision was applied by the national authorities. In other words: the Court refused to deal with domestic legislation if the human rights problem had its actual basis in the manner this legislation was interpreted and applied, i.e. if there was a discrepancy between the word of the law and the way it was applied. In the case of Adolf, for instance, the national penal code of the 48 Eg. Klass and Others v Germany App no 5029/71 (ECtHR, 6 September 1978) para 33. 49 Cf. the finding of a violation of the applicant’s rights in the operative part of each pilot judgment. 50 Cf. the following Chapters as regards this question.



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respondent State empowered the domestic courts to abstain from finding a person guilty and from imposing a sentence if, in case of a probable suspicion, the putative offence was only of minor gravity. However, when the national court applied this provision in its decision, which was later challenged before the Court, the national court acted on the presumption that the applicant had actually committed the crime—which alone, and not the provision of national law, violated Article 6 of the Convention.51 In Minelli the Court had to deal with a similar constellation.52 The Court’s approach in these judgments is stringent, since the violations of the Con­ vention did not stem from domestic legislation itself, but rather from a defective application of that legislation by national authorities. How­ ever, it is to be distinguished from and is not in conflict with the Court’s approach in the pilot judgments because the provisions of domestic legislation, which were examined in several pilot judgments, indeed determined acts of the domestic authorities which violated the rights of individuals.53 Therefore, cases like Adolf or Minelli, which are exemplary for the Court’s restrictive approach as applied prior to the first pilot judgment, are of minor relevance as regards the pilot-judgment procedure: Either the pilot judgments concerned practices incompatible with the Convention instead of domestic legislation,54 or the detrimental individual acts were indeed caused by domestic legislation, and not only prompted by the way domestic legislation was applied by domestic authorities or courts.55 Thirdly, several cases in which the Court refused to examine domestic legislation concerned legal provisions which theoretically ordered measures contrary to the Convention, but which were interpreted in a way which was Convention compliant by the national authorities, so that they did not cause a disadvantage to individuals.56 These cases are also of

51 Adolf v Austria App no 8269/78 (ECtHR, 26 March 1982) para 36. 52 Minelli v Switzerland App no 8660/79 (ECtHR, 25 March 1983). 53 For instance Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 110 et seq. and 6th operative provision. 54 Eg. Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) 4th operative provision. 55 Eg. Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 110 et seq. and 6th operative provision. 56 F. v Switzerland App no 11329/85 (ECtHR, 18 December 1987) para 23; concurring with the Court’s approach in this respect it seems appropriate to assess the applicant’s actual treatment, and not the theoretical legal background of this treatment. The latter would accordingly lie outside the legitimate scope of assessment by the Court.

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no relevance as regards the pilot-judgment procedure, since in pilot judgments which concerned domestic legislation, this legislation has indeed lead to an ill-treatment of individuals which was contrary to the Convention. It follows that several of the Court’s judgments in which it had refused to examine domestic legislation, and in which it had highlighted that it had to confine its attention to the turn of events in the applicant’s case, are in fact not in conflict with the pilot-judgment procedure, since they concerned very specific circumstances which were not present in the pilot-judgment procedures. Nevertheless, there remain judgments which appear to be in conflict with a “structural” focus as adopted by the Court in the pilot-judgment procedures, i.e. with an examination of domestic legislation at the basis of individual measures. In Bönisch the Court refused to comment on the legitimacy of a national provision, although this provision had explicitly determined the concrete turn of events which had detrimentally affected the applicant, and which had been applied in accordance with the national legislator’s intentions.57 Similarly, in Young, James and Webster the Court abstained from assessing agreements which provided that membership in a trade union was a condition for (continuing) employment by British Rail (“closed shop”) as such, which the applicants were affected by and which was made lawful by domestic law in force at the relevant time.58 In those judgments the Court clearly denied any competences to extend its assessment to the legal structures behind the facts of the individual case—although, the latter had directly been determined or permitted by the former. It follows that not all instances in the Court’s case-law of a refusal to examine the legal structures behind detrimental individual measures of national authorities concerned situations similar to those in the pilotjudgment procedures; consequently, the pilot judgments are not in conflict with these cases. Nevertheless, the Court has indeed repeatedly refused to adopt a broader, more comprehensive view by including those legal structures in its examination which had determined, or at least permitted, the concrete turn of events which were contrary to the Convention. As was said above, the Court also formulated its approach in that regard as a principle, according to which it had to confine its attention, as far as

57 Bönisch v Austria App no 8658/79 (ECtHR, 6 May 1985) para 26 et seq. 58 Young, James and Webster v The United Kingdom App nos 7601/76, 7806/77 (ECtHR, 13 August 1981) para 49 and 53.



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possible, to the issues raised by the concrete case.59 Although those cases are in fact not numerous, it is still to be asked if the Court’s point of view in these cases is stringent. M. Breuer claims, for instance, that this selfrestriction of the Court solely emerged from the Court’s refusal to assess individual complaints in case the applicant challenged domestic legislation in the abstract without being a victim of that legislation, thus, if applicants tried to raise an actio popularis.60 If this point of view was accurate, the Court’s self-restriction would not be applicable in case the applicant’s victim state was undisputed—as it was the case in all pilot judgments. Thus, the key question remains if the Contracting States have empowered the Court to assess the Contracting States’ internal legal order as to its conformity with the Convention in the framework of the individual complaints procedure, i.e. by way of a procedural means which allows individuals to complain about concrete and particular acts of national authorities. This question shall be examined in the following and shall start with an analysis of the implications of Articles 19 and 32 for the Court’s approach of assessing structural problems in proceedings following individual applications. 16.3.2 Articles 19 and 32 as Empowering Provisions Any examination as to competences of the Court has to be based on the principle that the competences of international organisations are limited to those conferred to them by (the signatories of) the founding treaties, including the amendments to them.61 This constitutes the basic assumption for the further examination: the Court only has those powers and competences which derive from the Convention and the Additional Protocols to it.62 Therefore, the question as to the conformity with the Convention of the pilot-judgment procedure can only be answered in the affirmative if there is a legal basis in the Convention for the Court to take the characteristic procedural steps.63

59 Bönisch v Austria App no 8658/79 (ECtHR, 6 May 1985) para 27; F. v Switzerland App no 11329/85 (ECtHR, 18 December 1987) para 27; Olsson v Sweden (No 1) App no 10465/83 (ECtHR, 24 March 1988) para 54. 60 Breuer, ‘Individualbeschwerde’ 122. 61 Cf. Klein, Schmahl, ‘Organisationen’ 351; Weiß, Kompetenzlehre 358 with further reference. 62 For instance Breuer, ‘Abhilfemaßnahmen’ 259. 63 The necessity to ascertain a legal basis for the pilot-judgment approach is also emphasised by Eschment, Musterprozesse 104.

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The Court’s task and purpose (its “mission”64) is defined basically by Article 19,65 according to which the Court is established to ensure observance of the engagements undertaken by the Contracting States. This provision outlines, in rather general terms, the subject of the Court’s examination: the engagements undertaken by the Contracting States in the Convention and the additional Protocols.66 Article 19 is a general stipulation which appears not to be the legal basis of concrete competences of the Court; however, the latter’s responsibilities are made more concrete by the determination of its jurisdiction67 or competences in Article 32 (including the provisions referred to therein). According to Article 32, the Court only has jurisdiction if the matter has been referred to it under Articles 33, 34, 46 or 47. In turn, if a case has been duly68 brought before the Court in accordance with any of these provisions, Article 32 defines the Court’s jurisdiction as extending to all matters concerning the interpretation and application of the Convention: “the Court is endowed with full jurisdiction and may thus take cognisance of all questions of fact and of law which may arise in the course of the consideration of the case.”69 Accordingly, the (full) jurisdiction of the Court is established once a case raises a question regarding the interpretation or application of the Convention.70 Thus, two aspects are to be addressed in this context: Under which circumstances the Court may commence proceedings in order to exercise its functions; and which specific steps of examination it may take in the course of the subsequent proceedings. First, it is to be recalled as regards the pilot-judgment procedure that all pilot judgments were delivered in proceedings following an complaint of individuals who alleged that they had been treated contrary to the Convention. This constitutes a first indication for a competence of the 64 Loizidou v Turkey (Preliminary Objections) App no 15318/89 (ECtHR, 23 March 1995) para 93. 65 Cf. Kussbach, ‘Artikel 19 EMRK’ 11. 66 Cf. Kussbach, ‘Artikel 19 EMRK’ 12. 67 In the present context jurisdiction ratione materiae, cf. the Case “relating to certain aspects of the laws on the use of languages in education in Belgium” App nos 1474/62 and others (ECtHR, 9 February 1967). 68 Which also depends on further criteria of admissibility as laid down especially in Article 35. 69 De Wilde, Ooms and Versyp v Belgium App nos 2832/66 and others (ECtHR, 18 June 1971) para 49; Handyside v The United Kingdom App no 5493/72 (ECtHR, 7 December 1976) para 41. 70 Case “relating to certain aspects of the laws on the use of languages in education in Belgium” App nos 1474/62 and others (ECtHR, 9 February 1967); De Wilde, Ooms and Versyp v Belgium App nos 2832/66 and others (ECtHR, 18 June 1971) para 47.



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Court to take the procedural steps characteristic for the pilot-judgment procedure, since it has been conducted in the course of regular complaint proceedings commenced by individuals under Article 34 of the Con­ vention. This leads to the question if the Court is competent to carry out the specific structural examination of the systemic problem behind the individual applicant’s case, and if it is also competent to take the remaining procedural steps which are characteristic for the pilot-judgment approach—thus, the question as to the Court’s (legitimate) scope of examination in proceedings following an individual application. As regards this question, Article 34 does not stipulate the steps of examination of the merits of a case the Court may legitimately take in the course of proceedings following an individual application in detail. Article 38 also merely directs the Court to “examine the case”, without going into further detail. This applies equally to the Rules of Court, the relevant Chapters V-VIII of which do not give instructions on which aspects of a case the Court has to examine and to decide. Only Rule 61 (“Pilot-judgment procedure”) requests the Court to initiate a pilot-judgment procedure where the facts of an application reveal the existence of a structural or systemic problem in the concerned Contracting State. However, as will be discussed below, the Rules of Court may not concede competences to the Court which do not exist already on the basis of the Convention; only the Contracting States, whereas not the Court itself, has the power to grant competences in the Strasbourg system.71 At least, acting on the assumption that the Court respects the limits of its competences according to the Convention, Rule 61 reflects the Court’s opinion that it was empowered to conduct pilot-judgment procedures as stipulated therein. Thus, reference must be made to the general provision of Article 32, which grants the Court the competence to examine all matters con­ cerning the interpretation and application of the Convention which are referred to it by way of an individual complaint. In case of the individual complaints procedure this obviously means, initially, that the Court has jurisdiction to examine all aspects of a case which are necessary to decide on the solidity of the applicant’s allegations. This presupposes that the respective applicant is indeed the victim of a violation of the Convention,72 which has been assumed by the Court in all pilot-judgments delivered so far.

71 Cf. Chapter 17.4.5 (p 181). 72 Cf. the Court’s refusal to examine an actio popularis, p 107 above.

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As regards competences of the Court to assess structural shortcomings in a Contracting State which amount to a failure to fully implement and secure the rights of the Convention, it is to be highlighted that the existence of those shortcomings constitutes a violation of the latter as such.73 The delineation of the Court’s tasks in Article 19 already suggests its competence, in principle, to deal with those structural violations, since the concerned Contracting State has failed to observe its “engagements undertaken … in the Convention”.74 Furthermore, the question of domestic structures being in conformity with the Convention will represent a matter concerning the interpretation and application of the latter, as it is stipulated by Article 32 as constituting the jurisdiction of the Court. Articles 19 and 32 apply to all kinds of proceedings as laid down in the Convention, thus, also to the individual complaints procedure. It may be followed, in the first instance, that the Court is not restricted to deciding exclusively on the individual applicant’s case, but that it has jurisdiction, beyond the applicant’s case, to assess shortcomings in the domestic implementation of the Convention which become obvious on occasion of an individual case. 16.3.3 The Individual Complaints Procedure beyond the Interests of the Individual Applicant A strong argument—speaking in favour of competences of the Court to focus on domestic legal structures underlying individual violations of the Convention—is constituted by a broad perception of the role and objects of the individual complaints procedure, as gradually developed in the Court’s case-law and in legal doctrine over the last decades. Accordingly, it is assumed that the right to individual application has aspects which exceed the sole interests of the individual complainant.75 J. Polakiewicz describes proceedings under Article 34 to be instrumental for the prevention of further violations, and for the clarification of the nature and scope of the obligations under the Convention.76 F. Schorkopf points out that the main purpose of the individual complaint procedure is

73 Cf. Chapter 12.2 (p 58). 74 Cf. the wording of Article 19. 75 Van Dijk and others, Theory and Practice 56; with regard to the procedure before the entry into force of Protocol No 11 Ress, ‘Einzelfallbezogenheit’ 726; Schmahl, ‘Piloturteile’ 380 with further reference. 76 Polakiewicz, ‘Execution’ 64; cf. also Mahoney, ‘Reparation’ 268.



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to serve the public interest.77 With respect to a continuation of proceedings in case the applicant has deceased, the Court highlighted that human rights cases before the Court generally also have a moral dimension, which must be taken into account when considering whether the examination of an application after the applicant’s death should be continued. All the more so if the main issue raised by the case transcends the person and the interests of the applicant. … [The Court’s judgments] in fact serve not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties … Although the primary purpose of the Convention system is to provide individual relief, its mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of Convention States.78

Beyond that, it is argued that it was the true intention of the drafters of the Convention to install an individual complaints procedure as the most effective means for the purpose of upholding a general human rights standard in the Contracting States—considering the Contracting States’ reluctance to file an inter-state complaint.79 As regards the assessment of internal legal structures of a Contracting State by the Court, it is also being referred to the growing constitutional role of the protection system exercised by the Court,80 which went along with a decreasing importance of providing individual relief to applicants.81 Indeed, the pilot-judgment procedure emphasises a general dimension of human rights protection in that it focuses on the state of implementation of the Convention in the Contracting States’ domestic legal structures. At the same time, the role of individuals being affected by a systemic problem is a minor one, since individual applications are adjourned and struck out of the Court’s list once an effective domestic remedy has been installed.82

77 Schorkopf, ‘Durchsetzung’ 1601. 78 Karner v Austria App no 40016/98 (ECtHR, 24 July 2003) para 25 et seq., citing Ireland v The United Kingdom App no 5310/71 (ECtHR, 18 January 1978) para 154 and Guzzardi v Italy App no 7367/76 (ECtHR, 6 November 1980) para 86. 79 Cf. Mahoney, ‘Reparation’ 267; Frowein, Peukert, Menschenrechtskonvention 461. 80 Cf. for instance Popović, ‘Pilot Judgments’ 361; Eschment, Musterprozesse 299 et seq; generally Ress, ‘Rechtsstellung’ 132 et seq; Grabenwarter, Pabel, Menschenrechtskonvention 24 with further reference. 81 Wildhaber, ‘Future’ 163. 82 Cf. as to that aspect Chapter 19 (p 257).

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This more general dimension of the individual complaints procedure also finds an expression in the prevailing interpretation of Article 46, according to which a Contracting State responsible for a violation of the Convention is under the obligation to take adequate steps in order to prevent its recurrence in similar cases: If, in proceedings following an individual application, it emerges that the Convention is not fully implemented in the relevant field, and/or that there is a risk of a recurrence of similar violations in the future, the Contracting States are bound to take general measures following a judgment of the Court finding a violation in an individual case.83 Therefore, the Contracting States may be bound to take general measures of implementation in the context of the individual complaints procedure, although the individual applicant has received sufficient individual compensation by the respondent State. It would be contrary to this feature of the Strasbourg system to bar the Court from taking into account the legal and administrative structures behind the individual applicant’s situation, even if the respondent State might be obliged to alter those structures following the Court’s judgment. Until the pilot-judgment procedure, the respondent State had to adopt a “trial and error” approach when aiming at adjusting its domestic legal structures to the requirements of the Convention, a situation which apparently did not contribute to an effective and speedy execution of a judgment finding a violation.84 The Court addressing the weak spots in the internal legal order of the Contracting States could facilitate the States’ task of taking general remedial measures.85 Further Convention provisions indicate that proceedings before the Court do not only aim at remedying the applicant (be it an individual or a Contracting Sate), but that the Court also has to include considerations in its decisions which go beyond the applicant’s very interests. First, this is inherent in Article 37, according to which the Court shall continue the examination of an application which has previously been struck out of its list of cases if respect for human rights as defined in the Convention require so. A similar concept can be found in Article 39, which stipulates that that the Court may place itself at the disposal of the concerned Contracting States with a view to securing a friendly settlement of the matter under consideration, on the basis of respect for human rights as 83 Cf. Chapter 13.3.4 (p 76 above). 84 Likewise Breuer, ‘Individualbeschwerde’ 123. 85 Cf. Committee of Ministers, ‘Resolution on judgments revealing an underlying systemic problem’.



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defined in the Convention. This phrasing indicates that the Court also has to take the wider implications of a case into consideration when deciding on a friendly settlement, or when striking a case out of its list. In legal doctrine it is argued with respect to an “objective” function of legal protection of human rights under the Convention that the Court should not accept friendly settlements in case of most serious human rights violations, such as torture.86 In its attempts to secure a friendly settlement, the Court had a duty with respect to the public interest, which constituted a further indication of the “objective” character of the procedure provided for in the Convention.87 Furthermore, if proceedings following an individual application revealed that there existed structural shortcomings in the implementation of the Convention in a Contracting State which deprived a large number of persons of their rights under the Convention, a friendly settlement with a given individual applicant which focused exclusively on compensating the applicant and spared out any necessary reforms in the domestic legal system, would not be on the basis of “respect for human rights as defined in the Convention” as stipulated in Articles 37 and 39. Therefore, the Court would neither be empowered to accept such a narrow-focused friendly settlement under Article 39, nor to strike the case out of its list of cases according to Article 37.88 Accordingly, Articles 37 and 39 also indicate that the focus of the individual complaints procedure may not be limited to the very facts of the applicant’s ill-treatment if the case has broader implications. An interpretation of the provisions which govern proceedings before the Court, in the light of the overarching provision of Article 19, also suggests broader implications of the individual complaints procedure as regards shortcomings in the implementation of the Convention. The Convention obliges the Contracting States to safeguard respect for human rights on the national level (principle of subsidiarity89). First, this derives from the Contracting States’ duty to ensure that their internal domestic system does not violate the rights of the Convention.90 Secondly, the Contracting States are obliged to resolve cases of violations of the Con­ vention on the national level; this is reflected in particular in Article 13. 86 Grabenwarter, Pabel, Menschenrechtskonvention 86. 87 Van Dijk and others, Theory and Practice 224. 88 Grabenwarter, Pabel, Menschenrechtskonvention 87 with further reference to the Court’s case-law; cf. Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005) para 42. 89 Petzold, ‘Subsidiarity’; Reid, Convention 44. 90 Cf. Chapter 12.2 (p 58).

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If there are structural deficiencies in either way, the Contracting States do not observe their engagements undertaken in the Convention.91 The Court’s task of ensuring this observance according to Article 19 is to be seen as a further indication that the Court may focus on those deficiencies in proceedings following individual applications, since the purpose of the individual complaints procedure is also to uphold a general standard of human rights protection, thus, to effectuate comprehensive compliance with the Convention. This suggests competences of the Court to focus on shortcomings in the implementation of the Convention if they come to light by way of the examination of an individual application. True, the right to individual application was controversial at the time the Convention was drafted. On the other hand, the right of individual application has been mandatory since the entry into force of Protocol No 11; it is undisputed today, and is considered a key element of the Convention.92 Thus, the drafting history of the right to individual application only indicates, but is not a compelling argument in favour of, a narrow perception of the Court’s competences under Article 34 several decades after the entry into force of the Convention, and after the entry into force of Protocol No 11. Furthermore, it may be conceded that the individual complaints procedure is mainly designed to process individual occurrences of measures incompatible with the Convention, as it is partly assumed in legal doctrine.93 However, this perception does not rule out that the Court may go beyond the facts of the individual complaint in addition to an examination of the applicant’s case. It does not negate the Court’s competences to assess and to decide on the legal structures being at the root of the decision or other concrete measure by the Contracting State which is incompatible with the Convention: Articles 34 and 41 merely set the primary— however not the exclusive—focus. All in all, it is to be stated that the Court is not restricted from adopting a wider focus when considering an individual application; it is not restricted from dealing with the implications of a systemic problem at the basis of the violation of the individual applicant’s rights—as long as the Court decides on the applicant’s claims and conducts its structural examination in addition to its consideration of the applicant’s case. 91 Cf. Chapter 12.3 (p 67). 92 Ohms, ‘Artikel 34 EMRK’ 5; Grabenwarter, Pabel, Menschenrechtskonvention 44; Tomuschat, ‘Rechtsschutz’ 95 et seq; Frowein, Peukert, Menschenrechtskonvention 468; Mamatkulov and Askarov v Turkey App nos 46827/99, 46951/99 (ECtHR, 4 February 2005) para 122. 93 Cf. Chapter 16.2 (p 107).



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The consequences of this conclusion for the pilot-judgment procedure shall be examined in the following. 16.3.4 Application of these Principles to the Pilot-Judgment Procedure The previous elaborations, including the analysis of case-law and legal doctrine, did not focus specifically on the pilot-judgment procedure, but on Convention law in general. It is to be highlighted that, in the pilot judgments, the Court exceeded its previous interpretation of the individual complaints procedure as having implications beyond the individual applicant’s interests: A specific focus on deficiencies in the implementation of the Convention, including determinations of required general remedial measures, had not been part of a judgment before the first pilot judgment was delivered. Therefore, it is to be asked if this broad conception of the individual complaints procedure also applies to the pilot-judgment approach. The provisions governing the individual complaints procedure neither explicitly empower the Court to focus on structural deficiencies in the implementation of the Convention in proceedings following an individual application, nor do they expressly prohibit the Court from assuming this focus. However, as was shown above, the individual complaints procedure also aims at upholding a general standard of human rights protection. The pilot-judgment procedure corresponds with this purpose; in fact, it is a particularly ambitious approach to induce the Contracting States to generally implement the Convention in case structural deficiencies have come to light, and it aims at upholding a general human rights standard beyond adjudicating on individual applications. Consequently, the pilotjudgment procedure corresponds basically with the broader implications of the individual complaints procedure, which speaks in favour of interpreting the relevant provisions of the Convention as including competences of the Court to assume a “structural focus” in proceedings following individual applications. The Court’s previous restrictive case-law approach, according to which it had to confine its attention to the applicant’s allegations of an ill-treatment, in that respect loses momentum: Those judgments among the case-law, which indeed concerned constellations similar to that present in the pilot judgments, have remained isolated decisions;94

94 Cf. again Bönisch v Austria App no 8658/79 (ECtHR, 6 May 1985) para 26 et seq. and Young, James and Webster v The United Kingdom App nos 7601/76, 7806/77 (ECtHR, 13 August 1981) para 49 and 53., p 116 above.

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in any case, judgments in which the Court assumed a broader focus— already before the first pilot judgment—are at least as numerous.95 Apart from that, the Court’s examination of the structural background of individual violations does not affect the interests of the “pilot”-applicant: In all pilot judgments, the Court examined the applicant’s allegations and adjudicated on them in the operative part of the judgment.96 The deficiencies in the implementation of the Convention in the Contracting States’ legal orders were assessed, and determinations of general remedial measures were conducted, in addition to an assessment of the applicant’s claims. Also, in several cases, the applicant’s claims for just satisfaction were decided on in the pilot judgment itself.97 In those cases there resulted no disadvantage for the applicant from the application of the pilot-judgment procedure. It is more questionable if the applicant is adversely affected in case the Court reserves the question as to just satisfaction with a view to a future (friendly settlement) agreement between the applicant and the respondent State.98 In that context, the Court highlighted that the notion, in Articles 37 and 39, of respect for human rights as defined in the Convention and the Protocols thereto “necessarily extends beyond the sole interests of the individual applicant and requires the Court to examine the case also from the point view of ‘relevant general measures’”.99 This implies that the Court is inclined, in case of structural problems, to accept a friendly settlement only if also general remedial measures are at least envisaged.100 From this it could be follow that, if the decision on the claims for just   95 Cf. again Abdulaziz, Cabales and Balkandali v The United Kingdom App nos 9214/80 and others (ECtHR, 28 May 1985) para 78 et seq., para 93; Inze v Austria App no 8695/79 (ECtHR, 28 October 1987) para 43 et seq; Winterwerp v The Netherlands App no 6301/73 (ECtHR, 27 November 1981) para 45; X and Y v The Netherlands App no 8978/80 (ECtHR, 26 March 1985) para 27; Colozza and Rubinat v Italy (1985), cited in Frowein, Villiger, ‘Report’ 51; Chapter 16.3.1 (p 112 above).   96 Eg. Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) 2nd, 3rd and 6th operative provision.   97 Finger v Bulgaria App no 37346/05 (ECtHR, 10 May 2011) 6th operative provision; Dimitrov and Hamanov v Bulgaria App nos 48059/06, 2708/09 (ECtHR, 10 May 2011) 7th operative provision; Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) 6th operative provision; Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 98 (no just satisfaction awarded).   98 Eg. Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) 5th operative provision.   99 Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005) para 36. 100 Cf. Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005) para 42; Chapter 18 (p 238).



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satisfaction is reserved, the applicant of the pilot case has to wait longer to  receive satisfaction, since it might be time consuming to implement  general measures of implementation. However, the Court did not rule out to award just satisfaction to the applicant even before general measures have been taken by the respondent State.101 Therefore, the Court  did not regard the adoption of general remedial measures as an indispensable precondition to adjudicate on the applicant’s individual claims for redress. Besides, as the pilot judgments delivered so far show, the reservation of the decision on the applicant’s claims, and the assessment of general measures adopted by the respondent State after pilot judgments, is not indispensable for the pilot-judgment approach: In the majority of pilot-judgment procedures, the Court already adjudicated on the applicant’s claims for satisfaction in the pilot judgment itself, so that the applicant’s interests were safeguarded in any case.102 Furthermore, even if the Court’s approach to friendly settlements in the framework of  pilot-judgment procedures was to be considered as problematic with respect to the “pilot”-applicant, it is to be highlighted that it does not concern the Court’s examinations of systemic problems its determinations of general remedial measures: These elements do not impair the applicant’s interests and are, therefore, not to be considered as being in conflict with the individual complaints procedure, i.e. the right to individual application. Consequently, the Court’s practice of examining the structural roots of individual violations of the Convention (as well as of determining general remedial measures), has a legal basis in the Convention and is not in conflict with the individual complaints procedure. The right to individual complaint does not only provide individuals with redress in case of violations of the Convention, but also aims at upholding a certain human rights 101 Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005) para 36; Hutten-Czapska v Poland (friendly settlement) App no 35014/97 (ECtHR, 28 April 2008) para 34. 102 Lukenda v Slovenia App no 23032/02 (ECtHR, 6 October 2005) 6th and 7th operative provision; Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) 9th and 10th operative provision; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) 8th and 9th operative provision; Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) 6th and 7th operative provision; Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) 6th and 7th operative provision; Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) 7th and 8th operative provision; Finger v Bulgaria App no 37346/05 (ECtHR, 10 May 2011) 6th and 7th operative provision; Dimitrov and Hamanov v Bulgaria App nos 48059/06, 2708/09 (ECtHR, 10 May 2011) 7th and 8th operative provision.

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standard. This immanently involves a wider, more general focus going beyond the very facts of the individual applicant’s case if general questions of Convention compliance are raised in proceedings following an individual application. These wide implications of the individual complaints procedure are not a mere factual (side-) effect of adjudicating on a large number of individual applications, but are themselves a characteristic of this procedure. Therefore, the Committee’s invitation of the Court to “identify, in its judgments finding a violation of the Convention, what it considers to be an underlying systemic problem and the source of this problem”,103 as well as Rule 61 of the Rules of Court, are also to be regarded as being in conformity with the Convention. 16.3.5 Relevance for the Binding Effect of Judgments As already indicated, this conclusion is also relevant for the binding effect of judgments.104 In legal doctrine it has occasionally been argued that the Court would have to confine its examination to the particular turn of events which had affected the individual applicant, and that the structural causes of that turn of events would lie beyond the binding effect of judgments of the Court.105 This point of view has been opposed in this Chapter; in my opinion, the Court is empowered to focus on the structural roots of individual violations in the individual complaints procedure. In turn, since the Court is empowered to find systemic problems in its judgments, it is to be followed that the Court’s findings are be binding upon the Contracting States. This point of view is also reflected in legal doctrine. According to J. Polakiewicz, it was to be assumed that the binding effect of judgments comprised the legal structures which had determined the applicant’s ill-treatment if the Court included those structures in its assessment, and found their incompatibility with the Convention.106 Similarly, G. Ress points out that the Contracting States had to amend domestic legislation if the Court found legal provisions to be incompatible with the Convention.107

103 Committee of Ministers, ‘Resolution on judgments revealing an underlying systemic problem’. 104 Chapter 13.3.1 (p 72). 105 Meyer-Ladewig, Menschenrechtskonvention 395 and 400. 106 Polakiewicz, Verpflichtungen 48 et seq. 107 Ress, ‘Wirkung’ 235.



pilot judgments and the individual complaints procedure129 16.4 Judicial Review of Domestic Legislation?

Before the first pilot judgment was delivered, the Court’s attitude towards an examination of domestic legislation was a restrictive one: On several occasions the Court said that in proceedings originating in an individual application it had as a principle, and without losing sight of the general context, to confine its attention as far as possible to the issues raised by the concrete case before it.108 Based on that principle, the Court regularly confined its attention to the concrete detrimental act which affected the applicant—i.e., as a rule, the act by administrative authorities or domestic courts—and refused to examine the domestic legislation at the basis of those acts, even if they were a direct result of an application of that legislation.109 The Court only focused on domestic legislation itself in case the ill-treatment of an individual stemmed directly from the contested provisions and not from individual measures of implementation.110 The Court also emphasised that the Convention did not institute for individuals an actio popularis for the interpretation of the Convention, thus that it did not offer to individuals a chance to challenge domestic legislation without being individually and detrimentally affected by that legislation.111 However, in the course of time, the Court allowed exceptions to that principle and examined if domestic legislation was in conflict with the

108 Adolf v Austria App no 8269/78 (ECtHR, 26 March 1982) para 36; Minelli v Switzerland App no 8660/79 (ECtHR, 25 March 1983) para 35; Bönisch v Austria App no 8658/79 (ECtHR, 6 May 1985) para 27; F. v Switzerland App no 11329/85 (ECtHR, 18 December 1987) para 27; Olsson v Sweden (No 1) App no 10465/83 (ECtHR, 24 March 1988) para 54; Schmahl, ‘Piloturteile’ 377. 109 Eg. the judgment in the case of Sahin, where the Chamber still elaborated on the domestic legislation at the basis of the applicant’s ill-treatment (although it did not explicitly state that the legislation was contrary to the Convention) (Sahin v Germany App no 30943/96 [ECtHR, 11 October 2001] [Chamber] para 54 et seq.). In contrast, the Grand Chamber stated that it was not the Court’s task to examine the domestic legislation in the abstract, but that it had to examine the manner in which that legislation was applied to the applicant in the particular circumstances. Therefore, the Court did not find it necessary to consider whether the respondent State’s legislation as such was incompatible with the Convention. The question to be decided by the Court was whether the application of the respective legislation led to a treatment of the applicant which was contrary to the Convention (Sahin v Germany App no 30943/96 [ECtHR, 8 July 2003] [Grand Chamber] para 86 et seq.); cf. also Breuer, ‘Individualbeschwerde’ 122. 110 Marckx v Belgium App no 6833/74 (ECtHR, 13 June 1979) para 58; cf. also Norris v Ireland App no 10581/83 (ECtHR, 26 October 1988) para 50; Breuer, ‘Individual­ beschwerde’ 122. 111 Eg. Klass and Others v Germany App no 5029/71 (ECtHR, 6 September 1978) para 33.

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Convention in several judgments.112 Besides, it is acknowledged that a Contracting State’s legislation may be challenged in the framework of the inter-state complaints procedure according to Article 33.113 The analysis in the previous Chapter showed that the Court has adopted a broader focus of examination in its pilot judgments as a matter of principle, which has also taken the structural legal background of an individual violation in the respondent State’s domestic legal order into account. In the pilot judgments the Court also assessed domestic legislation—which is, besides administrative practices and other organizational shortcomings, one potential cause of repetitive applications.114 The Court’s review of domestic legislation is most striking in cases where the Court found that the (repetitive) violations of the Convention stemmed from an application of particular provisions of domestic legislation.115 Beyond that, the Court explicitly ordered domestic legislation to be altered in single pilot judgments,116 which presupposes that the Court had examined that legislation beforehand and had come to the conclusion that it was in conflict with the Convention. Considering this, it is to be noted that the pilot-judgment procedure is not fully unprecedented as regards a focus of the Court on domestic legislation.117 However, considering the Court’s repeated affirmation of its focus on the particular turn of events in proceedings following individual 112 Abdulaziz, Cabales and Balkandali v The United Kingdom App nos 9214/80 and others (ECtHR, 28 May 1985) para 78 et seq., para 93.; Inze v Austria App no 8695/79 (ECtHR, 28 October 1987) para 43 et seq. (cf. in this respect J. Polakiewicz, Verpflichtungen 43, who highlights that the Court’s assessment of the case was in fact not focused on the individual applicant’s case, but on the legal provisions at its basis); Winterwerp v The Netherlands App no 6301/73 (ECtHR, 27 November 1981) para 45; X and Y v The Netherlands App no 8978/80 (ECtHR, 26 March 1985) para 27; cf. also Bottazzi v Italy App no 34884/97 (ECtHR, 28 July 1999) para 22. 113 Ireland v The United Kingdom App no 5310/71 (ECtHR, 18 January 1978) para 240; Van Dijk and others, Theory and Practice 47; Ohms, ‘Artikel 33 EMRK’ 12; Polakiewicz, Verpflichtungen 40 and 48. 114 Similarly Breuer, ‘Individualbeschwerde’ 121 et seq. 115 Eg. Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010): “The Court recalls … that the general, automatic and indiscriminate restriction on the right to vote imposed by section 3 of the 1983 Act must be seen as falling outside any acceptable margin of appreciation”; in Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) the Court found, in the operative part, that the violation of the applicant’s rights “has originated in a systemic problem connected with the malfunctioning of domestic legislation in that … it imposed, and continues to impose, restrictions on landlords’ rights, including defective provisions on the determination of rent”. 116 Eg. Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) 6th operative provision. 117 Cf. again the judgments cited in n 112.



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applications, the instances of an examination of domestic laws prior to the first pilot judgment are to be considered as exceptions in the Court’s case-law. This has changed with the pilot-judgment procedure: Since systemic problems will have domestic legislation at their roots in many cases, the Court has institutionalized its review of domestic legislation with its pilot judgments. As regards the conformity of a review of domestic legislation by the Court with the Convention it is to highlighted, first, that the Court lacks one crucial power which domestic constitutional courts competent to review domestic legislation commonly have though: The Court is not empowered to repeal domestic legislation.118 From this it follows that the Court’s review of domestic legislation is actually confined to an examination whether or not that legislation is in conformity with the Convention; however, it may not directly interfere with domestic legislation.119 Secondly, from a perspective of the Contracting States’ obligations under the Convention, it is to be recalled that the Contracting States are required to adapt their domestic legislation to the requirements of the Convention (or to make sure that legislation which is not in conformity with the Convention is not applied by domestic authorities and courts).120 From this it follows in turn that the Contracting States fail to observe their obligations under the Convention—i.e. under public international law— if their legislation is in contraction to it. If the Court finds domestic legislation to be contrary to the Convention, it indeed comments on the state of adherence of the respective Contracting State with the Convention; it comments on whether a Contracting States has observed its obligations arising from the Convention. Thirdly, from a perspective of the Court’s competences, it has been concluded that the Court is empowered to go beyond an examination of the particular turn of events in the individual applicant’s case and to take into consideration the structural roots of an applicant’s ill-treatment.121 This includes domestic legislation, since it is one potential cause of repetitive

118 Marckx v Belgium App no 6833/74 (ECtHR, 13 June 1979) para 58; Matscher, ‘Verfahren’ 525; Frowein, Villiger, ‘Report’ para 30; Frowein, ‘Binding Force’ 261; Schindler, ‘Wirkungen’ 275 et seq. 119 It that regard, the declaratory character of the Court’s judgments is emphasized in the Court’s case-law and in legal doctrine; cf. Chapter 17.3 (p 145) as to that aspect of the Court’s judgments. 120 Chapter 12.2 (p 58). 121 Chapters 16.3.3 (p 120) and 16.3.4 (p 125).

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applications. Also in that regard, there is no conflict with the Convention if the Court takes domestic legislation into consideration. Fourthly, the Court’s examination of domestic legislation in its pilotjudgments is in line with its previous case-law regarding the requirement of applicants to be the victim of a violation: The pilot-judgment procedure does not introduce for individuals a means to challenge domestic legislation in the abstract in terms of an actio popularis. Also in case of a pilot judgment, the applicant needs to be a victim of a violation (cf. Article 34). Accordingly, the Court found a violation of the applicant’s rights in its pilot judgments and conducted its assessment of domestic legislation in addition to its examination of the applicant’s complaints. As is accurately noted in legal doctrine, the victim requirement solely requires the Court to deliver judgments only in case the applicant is indeed a victim of a violation; however, it does not prohibit the Court from focusing on domestic legislation as an additional step of examination in proceedings following an admissible individual application.122 From a perspective of judicial review of legislation in Austrian constitutional law,123 the pilot-judgment procedure features aspects of the Austrian Constitutional Court’s competence to decide on individual complaints against individual administrative decisions (Bescheidbeschwerde), in the framework of which the Constitutional Court may initiate a review of domestic legislation which determined that individual decision.124 If the Constitutional Court finds the reviewed provisions to be in conflict with the Federal Constitution, it is empowered to repeal them and to annul the individual administrative decision.125 In these proceedings, as in the pilotjudgment procedure, proceedings are launched by individuals who are affected by individual legal acts; if the Constitutional Court decides to review domestic legislation, it adopts a broader focus and assesses the legal structures at the basis of that individual act. Besides these parallels, there are substantial differences between the pilot-judgment procedure and the review of legislation by the Austrian Constitutional Court in the framework of the complaint against administrative decisions: As has been mentioned, the Constitutional Court is

122 Breuer, ‘Individualbeschwerde’ 123. 123 For German constitutional law cf. Eschment, Musterprozesse 82 et seq. 124 Article 144 § 1, read in conjunction with Article 140, of the Austrian Federal Constitution. 125 Walter, Mayer, Kucsko-Stadlmayer, Bundesverfassungsrecht 556 et seq; Berka, Verfassungsrecht 346.



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empowered to repeal domestic legislation in case it turns out to be unconstitutional,126 which the Court is not.127 Furthermore, according to Austrian constitutional law, individuals may challenge domestic legislation when complaining about an individual administrative act, which makes that assertion subject of proceedings before the Constitutional Court. In case of the pilot-judgment procedure on the other hand, it is within the Court’s discretion if it examines domestic legislation at the basis of a particular applicant’s ill-treatment at all (i.e. in a broader perspective: if the Court designates a particular judgment as a pilot judgment)—it can also choose not to apply the pilot-judgment procedure and to focus exclusively on the applicant’s complaints instead. Therefore, applicants cannot initiate a pilot-judgment procedure to challenge domestic legislation—even if they are victims of acts by domestic authorities based on that legislation. It is to be concluded that the pilot-judgment procedure will regularly involve a review of domestic legislation.128 Also in case of the pilot-judgment procedure, there needs to be an applicant who was a victim of the legislation; this procedure does not allow individuals to raise an actio popularis. In any case, the Court’s competences are restricted to declaring that provisions of domestic legislation are in contraction with the Convention; however, it is not empowered to repeal domestic legislation.

126 Cf. Article 140 § 3, 5 of the Austrian Federal Constitution; Walter, Mayer, KucskoStadlmayer, Bundesverfassungsrecht 539. 127 Marckx v Belgium App no 6833/74 (ECtHR, 13 June 1979) para 58; Matscher, ‘Verfahren’ 525; Frowein, Villiger, ‘Report’ para 30; Frowein, ‘Binding Force’ 261; Schindler, ‘Wirkungen’ 275 et seq. 128 Likewise Breuer, ‘Individualbeschwerde’ 123; Schmahl, ‘Piloturteile’ 379.

CHAPTER SEVENTEEN

DETERMINATION OF REMEDIAL MEASURES 17.1 Introduction One of the crucial elements of the pilot-judgment procedure—if not the most decisive feature129—is the Court’s practice of determining general remedial measures which the respondent State is supposed to take in order to remedy the systemic dysfunction found in its domestic legal order.130 In the following it shall be examined if these determinations of remedial measures in the operative part of a judgment are compatible with the Convention, or if, in contrast, the Court exceeds its powers as conferred on it. This question is controversial, and it involves several aspects. The need for a legal basis for the Court’s practice is acknowledged in legal doctrine;131 the existence of a sufficient legal basis has been doubted by Judges of the Court (with respect to a possible erga omnes effect of those determinations).132 First, an examination of this question will involve an analysis of the conditions under which the Court’s determinations of remedial measures may have binding effects at all (Chapter 17.2). Thereupon, the Court’s approach to determining remedial measures in its judgments over the last decades shall be examined, and the criteria which the Court has invoked when elaborating on the question whether or not it is competent to determine remedial measures shall be assessed (Chapter 17.3). Following that, the examination shall seek to identify any Convention provisions (as well as provisions of the Rules of Court and of Resolutions or Recommendations by the Committee) which might constitute a legal basis for the Court’s determinations of remedial measures (Chapter 17.4). However, even if a Convention provision may be interpreted as empowering the Court to determine remedial measures, it would be premature to 129 Similarly Eschment, Musterprozesse 207. 130 Cf. Chapter 9.2 (p 43 above) already. 131 Cf. for instance Eschment, Musterprozesse 104. 132 Partly Dissenting Opinion of Judge Zagrebelsky and Partly Concurring, Partly Dissenting Opinion of Judge Zupančič to Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006).



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conclude that the Court was indeed empowered to do so. The words of the Convention—and its provisions as a whole—are to be interpreted in their context, thus also in the light of the remaining provisions of the Convention.133 Therefore, the question whether empowering Convention provisions indeed constitute a suitable legal basis for the Court’s course of action may only be answered if also Convention principles which possibly are in conflict with the Court’s approach are taken into consideration— mainly the Contracting States’ scope of discretion when executing a judgment (Chapter 17.5) and the exclusive powers of the Committee in the Strasbourg system of human rights protection (Chapter 17.6). 17.2 Binding Effect of the Court’s Determinations 17.2.1 Relevance Any examination whether there are competences of the Court to prescribe general remedial measures appears to presuppose that legal effects are created by those orders—otherwise no conflicts with Convention law appear to be conceivable at all:134 If the Court’s determinations were not  binding, they would not create corresponding obligations of the Contracting States in the execution process and would, therefore, not be capable of, for instance, restricting the Contracting States’ scope of discretion when implementing a judgment.135 Any actions in supervising execution of a judgment by the Committee would also not be bindingly preordained, so that any exclusive powers of the Committee in supervising execution would remain intact in any case—regardless of how the scope of the Committee’s domain was to be defined.136 Consequently, this would render the question unnecessary if the Court’s course of action was in conformity with the Contracting States’ discretionary domains in the execution process. Thus, if it is asked if the Court’s determinations of the

133 Cf. Article 31 of the Vienna Convention; Villiger, Vienna Convention 427; Verdross, Sima, Völkerrecht 492. 134 Also the Court distinguishes between orders—which might lie outside its jurisdiction—and indications of remedial measures—which the Court is not barred from giving (Verein gegen Tierfabriken Schweiz [VgT] v Switzerland [No 2] App no 32772/02 [ECtHR, 30 June 2009] para 89). 135 Cf. as to the Contracting States’ discretion in the execution process Chapter 17.5 (p 193). 136 Cf. as to the Committee’s competences in supervising execution of judgments Chapter 17.6 (p 225).

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Contracting States’ obligations following its judgments are in conformity with the Convention, first, the question arises which is in fact the precondition for seeking to ascertain the conformity with the Convention of those determinations, if these determinations create legal effects at all. However, the binding nature of the Court’s determinations is controversial and needs to be ascertained beforehand. Certainly, even if the Court’s determinations were to be considered as lying outside the binding effect of its judgments, in most cases the Contracting State concerned will not be able to avoid implementing the identified measures in the long term. True, the Court has no formal competences to supervise the execution of a judgment.137 However, in case future applications are brought before the Court which allege violations similar to those which had been subject to previous proceedings before the Court, the Court will (traditionally with the main focus on the respective applicant’s ill-treatment) implicitly assess if the measures adopted in the meantime by the Contracting State concerned have been sufficient: If they have not been sufficient, and if the applicant’s ill-treatment was another instance of a violation of the Convention being caused by those deficiencies, the Court will find a violation of the Convention—and continue to do so until those deficiencies have been resolved. Therefore, it may be said that the Court’s determinations of remedial measures implicitly involve the announcement that it will regard future similar factual occurrences as violations of the Convention if the Contracting State concerned fails to act as prescribed. Nevertheless, since it is in fact the Court’s intention to prevent those future applications from being lodged in its approach of specifying the required remedial measures, the question as to the binding effect of the Court’s determinations remains to be answered. Legal doctrine is divided in its opinion as regards the binding effect of  the Court’s determinations in the operative part of pilot judgments. On the one hand, it is assumed that the Court’s identifications of remedial measures are mere advices.138 Judge Zupančič interprets the Court’s findings as mere indications as to suitable measures to remedy the respective structural problem.139 J. Frowein describes the Court’s practice as 137 Cf. Verein gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) App no 32772/02 (ECtHR, 30 June 2009) para 61 et seq; Chapters 17.6 (p 225) and 18 (p 238). 138 Eg. Fribergh, ‘Pilot Judgments’ 87: “In the judgment in the pilot case, the Court gives advice to the Government on how to solve the systemic problem.”. 139 Partly concurring, partly dissenting opinion to Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006): “… or is it better to say to the country concerned: ‘Look, you have a serious problem on your hands and we would prefer you to resolve it at home…! If it



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“indicating what measures should be taken”,140 which implies that this author considers the Court’s determinations as non-binding. With respect to instances of determinations of individual remedial measures by the Court,141 H.-J. Cremer doubts that those findings are indeed sentences of obligations, since the Court would lack respective powers according to its own opinion.142 On the other hand, it is claimed that the Court’s findings are indeed binding on the Contracting States concerned. W. Sadurski explicitly opposes Judge Zupančič’s opinion as expressed in Broniowski and as cited just above.143 L. Garlicki also interprets the Court’s findings as “commands”.144 C. Grabenwarter and K. Pabel appear to act on the assumption that the Contracting States have to abide by the Court’s determinations: The authors highlight that the respective Contracting State’s discretionary powers may be reduced to zero as a result of the Court’s orders,145 which is only comprehensible if the Contracting States have to act as prescribed by the Court. Judge Costa also appears to have acted on this assumption in his Concurring Opinion to Assanidze, when he elaborates on the (principally) “mandatory” and “compulsory” nature of the Court’s orders in previous cases (especially in Papamichalopoulos and Others); his note that there “have already been cases in which the Court has limited the  State’s choice of means”146 also corroborates this interpretation, since the Contracting States’ choice of means can possibly only be limited

helps, these are what we think you should take into account as the minimum standards in resolving this problem…’?”. 140 Frowein, ‘Binding force’ 263. 141 For instance Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004) 14th operative provision; Papamichalopoulos and Others v Greece (Article 50) App no 14556/89 (ECtHR, 31 October 1995) 2nd operative provision; Boicenco v Moldova App no 41088/05 (ECtHR, 11 July 2006) 9th operative provision. 142 Cf. Cremer, ‘Entscheidung’ 1731 (footnote 91). 143 Sadurski, ‘Partnering’ 426: “[Judge Zupančič’s statement, cf. n 139 (p 136)] sounds great when thrown into a judicial opinion but it is emphatically not what the Court said in Broniowski (or later in Hutten-Czapska for that matter). The language of the rulings is stern, peremptory and imperative, none of the ‘hey, if you want our advice, here it is, but feel free to do what you want’. It rather says what the Polish State ‘must’ do (‘in order to put an end to the systemic violation … the respondent State must … secure in its domestic order a mechanism…’),[…] no ifs or buts.” 144 Garlicki, ‘Broniowski’ 185: “… each ‘pilot judgment’ constitutes not a mere recommendation but a command …”. 145 Grabenwarter, Pabel, Menschenrechtskonvention 105. 146 Concurring opinion to Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004) para 5. Cf. as to the implications of the Court’s judgment in Papamichalopoulos and Others v Greece (Article 50) App no 14556/89 (ECtHR, 31 October 1995) Chapter 17.3.2 (p 150) below.

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if corresponding determinations by the Court are mandatory and have to be complied with. As regards the Court’s case-law on the question of a binding effect of its determinations in its pilot judgments, it appears that it was not the Court’s (sole) intention to express a mere opinion on the structural causes of repeated violations and to recommend or identify remedial measures with a view to resolving these causes. It rather seems that the Court indeed intended to determine the obligations of the Contracting States concerned with a binding effect—whereas binding effect in that regard can only mean that the Court’s orders create obligations of the Contracting States concerned to abide by those orders, and that the Contracting States concerned would (per se) violate the Convention, if they failed to abide. The Court’s intention to determine the Contracting States’ obligations is indicated, in particular, by the Court’s own phrasing in its pilot judgments, when it “Holds … that, in order to put an end to the systemic violation identified in the present case, the respondent State must … “(emphasis added).147 The Court’s principal refusal, before the first pilot judgment, to determine specific remedial measures, as it had been characteristic of its “traditional” approach in that regard,148 also indicates, to a certain extent, the Court’s opinion that such indications have binding effect: Otherwise, i.e. if they were mere recommendations without binding effect, no legal obligations of the Contracting States would apparently result, and there would be no need to adopt such a restrictive point of view as done prior to the first pilot judgment. On the other hand, in a later pilot judgment, the Court explicitly stated that it wanted to “suggest, on a purely indicative basis,” which general remedial measures were necessary in the case under consideration; nevertheless, the Court stuck to its common phrasing (“the respondent State must”) in the operative part of the judgment.149 Consequently, it does not derive clearly from the Court’s case-law if the Court claims a binding effect for its determinations of general remedial measures in the operative part of its pilot judgments. In the following, the preconditions for a binding effect of the Court’s judgments shall be examined. This examination will involve an analysis of

147 Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) 4th operative provision. 148 Cf. for instance Zanghì v Italy App no 11491/85 (ECtHR, 19 February 1991) para 26; Chapter 17.3.1 (p 145). 149 Maria Atanasiu and Others v Romania App nos 30767/05, 33800/06 (ECtHR, 12 October 2010) para 230 and 6th operative provision.



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Article 46 § 1 as regards the binding effect of judgments (Chapter 17.2.2.1) and an analysis of the importance of the Court’s determinations being comprised in the operative part of judgments and being imperatively phrased (Chapter 17.2.2.2). 17.2.2 Preconditions for a Binding Effect 17.2.2.1 Article 46 § 1 Initially, the question arises how the binding effect of judgments, as stipulated in principle by Article 46 § 1, is to be defined. As was elaborated on above, the binding effect of judgments traditionally comprises mainly two aspects: After a judgment in which a violation of the Convention was found in an individual case the Contracting State concerned may not dispute any longer that the violation found has indeed occurred; it may not claim that its actions or omission were in conformity with the Convention.150 Furthermore, the Contracting State concerned is under the obligation to take remedial measures, i.e. measures to cease a violation, to provide reparation, and to prevent occurrences of similar violations in the future;151 if the Court has awarded just satisfaction, the Contracting State concerned is bound to pay the sum awarded.152 In the context of the pilot-judgment procedure the question arises if the Contracting States, furthermore, must abide by judgments of the Court in case the Court imperatively determines obligations to take general remedial obligations in the operative part of a judgment. According to Article 46 § 1, the Contracting States “undertake to abide by the final judgment of the Court in any case to which they are parties.” This general and unconditional wording could be invoked as supporting the opinion that the Court’s determinations of remedial measures create corresponding obligations of the Contracting States to take those measures, since those determinations or orders are part of judgments of the Court. Since the Contracting States are bound to abide by those judgments, the wording of Article 46 § 1 could be said to include determinations of obligations to take remedial measures. On the other hand, it is to be assumed that this provision does not grant powers to the Court, but that it merely stipulates the Contracting States’ obligation to abide by judgments of the Court which were delivered 150 Meyer-Ladewig, Menschenrechtskonvention 396; Fyrnys, ‘Pilot Judgments’ 1235. 151 Cf. Chapter 13.3.4 (p 76) above. 152 Frowein, Peukert, Menschenrechtskonvention 602.

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in conformity with the competences as conceded to the Court by the Convention. It is acknowledged, for instance, that the Contracting States have to abide by judgments which award just satisfaction—since the Court is empowered to do so by virtue of Article 41.153 In contrast, it is similarly acknowledged that the Court has no competences to directly interfere with domestic legal acts, i.e. that it has no competences to repeal provisions of national law or to annul decisions of domestic courts or administrative authorities.154 Respective findings in a judgment by the Court would lie outside the binding effect of its judgments and would not oblige the Contracting States concerned.155 It is not to be assumed that the Contracting States have bound themselves to abide by any finding or determination in a judgment merely because the Court deems the determined measures necessary or appropriate, but that they have only undertaken to abide by judgments which have been issued in conformity with the Convention.156 This requires a legal basis in the Convention of all procedural steps taken in a judgment, thus it requires that the Court is empowered to take the respective procedural measure. Otherwise, Article 46 § 1 would empower the Court to take any action in its judgments with binding effect on the Contracting States, be it in conformity with the Convention or not. This corresponds, in principle, with public international law which is also relevant in case of the Convention as an international treaty.157 According to public international law, legal acts of (organs of) international organizations are valid and effective if there exist respective 153 Okresek, ‘Artikel 46 EMRK’ 6; Frowein, Peukert, Menschenrechtskonvention 602; cf. also Meyer-Ladewig, Menschenrechtskonvention 364. 154 Frowein, Peukert, Menschenrechtskonvention 603; Polakiewicz, Verpflichtungen 17; Meyer-Ladewig, Menschenrechtskonvention 396. 155 Eg. Frowein, ‘Binding Force’ 261 et seq. This view is also indicated in the Court’s phrasing in Marckx v Belgium (App no 6833/74 [ECtHR, 13 June 1979] para 58), where the Court stated that its “decision cannot of itself annul or repeal these provisions” (emphasis added). This phrasing indicates a principal lack of capacity to interfere with domestic legal acts. 156 Cf. in that regard Cremer, ‘Entscheidung’ 1731 (footnote 91), who doubts that the Court’s orders to return to the applicants their property in Papamichalopoulos and Others v Greece create obligations of the respondent State or, respectively, claims of the applicants, since the Court had not respective competences to issue such orders. Also W. Karl considers the Court’s order as a firm, but non-binding recommendation (Karl, ‘MRK Artikel 41’ 17 et seq, footnote 115). 157 According to the Court, the Convention must be interpreted in the light of the rules set out in the Vienna Convention, thus so far as possible consistently with the other principles of international law of which it forms a part: Golder v The United Kingdom App no 4451/70 (ECtHR, 21 February 1975) para 29; Mamatkulov and Askarov v Turkey App nos 46827/99, 46951/99 (ECtHR, 4 February 2005) para 111; cf. n 14 (p 55).



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competences to take them, thus if the (organs of) international organizations are empowered to act in a particular way.158 Beyond that point, the organs (or the international organization as a whole) act(s) ultra vires.159 Under which circumstances ultra vires acts may, nevertheless, be valid is a controversial question.160 However, it does not become relevant as long as the act is within the competences granted to (the respective organ of) the international organization. This also applies to the Convention: The question whether, in reference to public international law, ultra vires acts of the Court may still be binding does not become relevant as long as the Court acts within its competences. Therefore, the question as to a binding effect of the Court’s determinations again leads to the question if there is a legal basis in the Convention for the Court to direct the Contracting States to take specific remedial measures. If there is such a legal basis, thus if the Court is competent to determine the Contracting States’ obligations in this respect, it will follow that those directions feature a binding effect, i.e. that they create corresponding obligations of the Contracting States. If the Court is competent to determine remedial obligations shall be examined below.161 17.2.2.2 Operative Part, Imperative Phrasing The Court’s decision to include determinations of remedial measures in the operative part of its pilot judgments has also been emphasized in legal doctrine as being relevant for their binding effect. L. Garlicki notes, for instance, that each pilot judgment constituted not a mere recommendation but a command, at least in respect of those of its components included in the operative part of the judgment.162 First, it is to be asked if findings are binding ( just) because they are located in the operative part of a judgment. In that regard it is to be recalled that, initially, (determinations in) judgments of the Court only feature a binding effect if there are corresponding powers of the Court to

158 Breuer, ‘Abhilfemaßnahmen’ 259; Klein, Schmahl, ‘Organisationen’ 351 et seq; Weiß, Kompetenzlehre 358 et seq. 159 Cf. Weiß, Kompetenzlehre 383 et seq. The opinion of the Court’s course of action in its pilot judgments being ultra vires has been advanced for instance by Judge Zupančič in its Partly Concurring, Partly Dissenting Opinion to Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006). 160 Cf. Klein, Schmahl, ‘Organisationen’ 353 with further references; Osieke, ‘Validity’. 161 Chapters 17.4–17.6 (p 162 et seq.). 162 Garlicki, ‘Broniowski’ 185.

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determine those obligations.163 Therefore, it is not an inclusion in the operative part of a judgment which could render determinations of obligations binding, but it might only be competences of the Court under the Convention to determine remedial measures. If there are respective competences of the Court, determinations (of remedial obligations of Contracting States) will have to be abided by when they are included in the operative part. On the other hand, if the Court lacks competences to determine obligations, those determinations will not be binding just because they are included in the operative part of a judgment. In any case, determinations to take general remedial measures in the operative part of a judgment will most explicitly indicate the Court’s intention to issue orders which are legally binding. Accordingly, it is not primarily the labelling of findings of the Court as “operative” which renders them binding, but it is the power of the Court under the Convention to determine the Contracting States’ obligations following its judgments. From this it follows, with respect to the pilot-judgment procedure, that determinations of remedial measures are not to be considered legally binding simply because they are among the operative provisions of a judgment. However, it might be said that determinations as operative provisions most explicitly indicate the Court’s intention of issuing legally binding orders. Secondly, it may also be asked if determinations of remedial obligations are binding if they are not included in the operative part, but only in the reasoning of a judgment. As a matter of fact, this aspect is of minor relevance as regards the subject of this examination since, as was stated above, judgments are only considered pilot judgments for the sake of this examination if they include determinations of remedial obligations in the operative part of the judgment.164 Apart from that, it is to be noted that legal doctrine—as regards general public international law as well as the Convention—principally ascribes a binding effect of judgments only to their operative part.165 On the other hand, it is acknowledged with respect to Convention law that an obligation to take general remedial measures following a judgment may only be ascertained with reference to the reasoning of the judgment, since the operative part traditionally does not

163 Cf. Chapter 17.2.2.1 et seq. just above; before assessing if also ultra vires acts of the Court may have a binding effect, it is to be ascertained if the Court acted within its competences. 164 Chapter 9 (p 41). 165 Callewaert, ‘Judgments’ 729; similarly Cremer, ‘Entscheidung’ 1726; cf. also the references in Polakiewicz, Verpflichtungen 28 et seq.



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contain any findings regarding required general remedial measures.166 Accordingly, it is argued that the reasoning of judgments of the Court also features some binding effect.167 Furthermore, the Convention does not require the Court to formulate operative provisions when delivering a judgment. Article 45 merely stipulates that reasons shall be given for judgments and decisions of the Court. The Convention does not stipulate that judgments must comprise an operative part at all, and the Convention does not restrict the binding effect of judgments to particular parts of them. According to Article 46, the Contracting States merely have to abide “by the final judgment of the Court” in any case to which they are party— which refers to judgments as a whole, rather than to a particular (i.e. the operative) part of it. According to Rule 74 of the Rules of Court, a judgment in proceedings following an individual application shall, among others, contain the reasons in point of law and the operative provisions. Although it might be argued to be implicit in the notion of “operative” provisions, neither the Rules of Court stipulate that only operative provisions have legal force. Thus, it does not explicitly follow from the Convention or the Rules of Court that only the operative part of judgments of the Court had binding effect. The imperative phrasing of determinations to take remedial measures has also been considered relevant as regards the binding effect of the Court’s determinations. W. Sadurski notes, for instance, that the “language of the rulings is stern, peremptory and imperative”.168 J. Eschment states that, at a first glance, especially the imperative “must” of the Court’s orders admitted of no doubt as regards the obligatory effect of the Court’s orders; the author also speaks of binding orders.169 Also J. Frowein refers to the imperative wording of the Court’s determinations.170

166 Polakiewicz, Verpflichtungen 37 et seq., who argues that reference must also be made to the reasoning in order to determine the subject of proceedings and thus the limits of the binding effects of a judgment; Okresek, ‘Umsetzung’ 171, argues similarly with a view to the supervisory task of the Committee. The relevance of the reasoning for the binding effect of judgments is also to be discussed with respect to the Contracting States’ scope of discretion when executing judgments, cf. Chapter 17.5.4 (p 208) below. 167 Polakiewicz, Verpflichtungen 29. 168 Sadurski, ‘Partnering’ 426. 169 Eschment, Musterprozesse 213: “Gerade das imperative ‘muss’ lässt auf den ersten Blick keinen Zweifel an der obligatorischen Wirkung der gerichtlichen Anordnung zu”, likewise 211: “verbindliche Anordnungen [sollten] nur dann getroffen werden…” (emphasis added). 170 Frowein, ‘Binding Force’ 265: “… the state ‘must’ introduce a remedy. This refers to an obligation which, according to the Camber, arises from Convention law”.

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There is a considerable variety in the Court’s phrasing of determinations of remedial measures in the pilot judgments, reaching from reluctant recommendations or a mere expression of the Court’s opinion in the reasoning of its judgments on the one hand,171 to imperatively phrased orders which would support the assumption of a relevance of the phrasing for the binding effect of those identifications or determinations on the other hand.172 As was said with respect to determinations in the operative part of judgments,173 an imperative phrasing will also indicate that the Court claims compliance with its findings—which is the basic assumption of the present examination. Mere elaborations on appropriate remedial measures or opinions on obligations which possibly follow from a judgment finding a violation are not to be regarded as featuring the distinct binding force which is apparently claimed by the Court with respect to its findings in the operative part of its pilot judgments—even if there were powers of the Court to indeed determine those obligations. If the Court does not make use of its competences to explicitly determine the Contracting States’ remedial obligations (for instance, if the Court does not award just satisfaction according to Article 41174), remedial obligations may only derive from a subsequent application of the set of remedial obligations which put the Contracting States’ undertaking to abide by judgments of the Court in concrete terms (i.e. obligations to take individual and general remedial measures if the respective conditions are met175). In any case, an imperative phrasing will not render determinations of remedial measures binding, but only respective competences of the Court to determine the Contracting States’ obligations in that way will do so.176 171 For instance Driza v Albania App no 33771/02 (ECtHR, 13 November 2007) para 126: “It considers that the respondent State should…”; Urbárska obec Trenčianske Biskupice v Slovakia App no 74258/01 (ECtHR, 27 November 2007) para 150: “… the Court is of the opinion that general measures at national level appear desirable … Firstly, the respondent State should …”. 172 For instance Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) 6th operative provision: “Holds that the respondent State must set up, within six months …, an effective domestic remedy …”. 173 Cf. Chapter 17.2.2.1 (p 139) just above. 174 The Court has a scope of discretion as regards Article 41: Guzzardi v Italy App no 7367/76 (ECtHR, 6 November 1980) para 113; also I. Nifosi-Sutton refers to the discretionary nature of the exercise of the power conferred to the Court by Article 41 (Nifosi-Sutton, ‘Power’ 52); cf. also Okresek, ‘Art 41 EMRK’ 7; Tomuschat, Human Rights 252. 175 Cf. as to the remedial obligations which may follow from (the finding of) a violation of the Convention Chapter 13 (p 70). 176 Cf. already Chapter 17.2.2.1 (p 139) just above.



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Therefore, an imperative phrasing will not constitute the binding effect of the Court’s determinations, but it will be constitutive for the distinct obligations created by such findings—if respective competences exist. It follows that, first and foremost, the Court’s determinations will not be binding because they are located in the operative part of a judgment, or because they are imperatively phrased, but that they are only binding under the condition that the Court had respective competences to specifically determine the Contracting States’ remedial obligations in a judgment.177 Therefore, the Court’s determinations of remedial obligations will create corresponding obligations of the Contracting State concerned if the Court is empowered under the Convention to formulate those determinations in its judgments. In other words: it is to be assumed that the Contracting States have only undertaken to abide by (orders or determinations being part of) judgments of the Court if the latter have been delivered in conformity with the Convention. Thus, it is to be examined in the following if the Court is empowered to determine the Contracting States’ obligations to take remedial measures. As a first step, the development in the Court’s case-law and the aspects which derive as relevant from it are to be analysed. 17.3 Competences: Development and Relevant Factors 17.3.1 Case-Law and Legal Doctrine When ascertaining if there are competences of the Court to determine the Contracting States’ obligations following a judgment, it is to be highlighted, first, that the Court has been reluctant in determining remedial measures in its judgments before the first pilot judgment. Traditionally, the Court as well as legal doctrine have denied competences of the Court to determine remedial obligations in its judgments. Essentially, the Court invoked three concepts in order to deny competences to prescribe remedial measures: First, it stated that its judgments were essentially declaratory; secondly, that it was for the Contracting States to choose the means to execute judgments; and thirdly, that supervision of the execution of judgments was within the Committee’s powers. The relevant case-law and legal doctrine on these concepts shall be illustrated in this and the 177 The question whether the Court’s determinations were still binding even if the Convention did not empower the Court to do so (cf. Chapter 17.2.2.1, at p 140) only becomes relevant if the existence of respective competences has been answered in the negative.

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following Chapter, and their interrelation shall be analysed further in Chapter 17.3.3. First, the Court has repeatedly stated that its judgments were essentially declaratory.178 In legal doctrine, G. Ress highlights that Article 53 (now Article 46 § 1) did not empower the Court to determine specific measures in the operative part of a judgment, but that it was the Court’s practice merely to find if a violation of the Convention had occurred. According to G. Ress, the Court was careful not to instruct the Contracting States how to act in case a violation was found in order to establish a situation which was in conformity with the Convention, or to require them to alter domestic legislation within a specified time limit, or to review other measures of national authorities which had been concluded to be contrary to the Convention.179 F. Matscher takes the view that neither the Commission nor the Court could overturn impugned legal acts because they decided declaratory; only the award of just satisfaction was a judgment which prescribed actions to be taken (“Leistungsurteil”); the Court’s judgment was limited to the finding that a particular act or omission constituted a violation of the Convention.180 J. Frowein and M. Villiger also refer to a “declaratory nature of judgments”: Article 50 (before the entry into force of Protocol No 11,181 now Article 41) clearly showed that the Court’s judgments were of a declaratory nature: The Court was empowered to find if any conduct imputable to state authorities was, or was not, in conformity with the Convention; its judgments could not quash or annul the impugned domestic act.182 L. Wildhaber states that the task of establishing the existence of a violation fell to the Court, while supervision of the execution of judgments finding such a violation was the role of the Committee;183 the Strasbourg system was based on declaratory judgments.184 According to 178 Marckx v Belgium App no 6833/74 (ECtHR, 13 June 1979) para 58; Verein gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) App no 32772/02 (ECtHR, 30 June 2009) para 62; in legal doctrine Callewaert, ‘Judgments’ 729; Matscher, ‘Verfahren’ 525; Okresek, ‘Artikel 46 EMRK’ 6; Judge Costa, Partly Concurring Opinion to Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004) para 3. 179 Ress, ‘Wirkung’ 233. 180 Matscher, ‘Verfahren’ 525 et seq; cf. also Haidenhofer, ‘Umsetzung’ 807. 181 Before the entry into force of Protocol No. 11, Article 50 stipulated: “If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party, is completely or partially in conflict with the obligations arising from the present convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party”. 182 Frowein, Villiger, ‘Report’ § 30. 183 Wildhaber, ‘Letter’ 285. 184 Wildhaber, ‘Rückblick’ 39.



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W. Okresek, a judgment which found a violation of the Convention was— except for the award of just satisfaction under Article 41—a declaratory judgment.185 W. Karl notes that the Court’s judgments were declaratory judgments, the operative part of which was limited to the finding of a violation and the award of just satisfaction.186 C. Grabenwarter and K. Pabel state that the the Court’s powers were limited to the finding of a violation of the Convention, whereas it was not within its competences to repeal domestic legislation or other legal acts.187 Also J. Cremer notes that the Court only finds if the Convention was violated; it was doubtful if the Court’s orders in several judgments were obligatory findings, since the Court lacked respective competences according to its own case-law.188 According to D. Schindler, the Court was not authorised to declare domestic legal acts void; it could merely find that domestic acts were contrary to the Convention.189 Accordingly, the Court as well as legal doctrine have invoked a declaratory character of the Court’s judgments in order to deny competences of the Court to prescribe remedial measures. Secondly, apart from a declaratory nature of its judgments, the Court has stated on various occasions that its judgments left the choice of means to be utilized in the domestic legal system for performance of their obligations under Article 46 § 1 to the Contracting States. From this the Court followed that it was not empowered to give directions to the respondent State as regards the required measures following a judgment.190 Accordingly, the Court has refused to order the respondent State to change domestic legislation,191 to publish its judgment,192 or to direct the respondent State to give the undertaking not to subject the applicant to a treatment contrary to the Convention in the future.193 In the case of 185 Okresek, ‘Artikel 46 EMRK’ 5 et seq; Okresek, ‘Umsetzung’ 169. 186 Karl, ‘Vollzug’ 41. 187 Grabenwarter, Pabel, Menschenrechtskonvention 102. 188 Cremer, ‘Entscheidung’ 1730 et seq. 189 Schindler, ‘Wirkungen’ 275 et seq. 190 Besides those cited in the following Pauwels v Belgium App no 10208/82 (ECtHR, 26 May 1988) para 41; Demicoli v Malta App no 13057/87 (ECtHR, 27 August 1991) para 45; Akdivar and Others v Turkey (Article 50) App no 21893/93 (ECtHR, 1 April 1998) para 47; cf. Van Dijk and others, Theory and Practice 298; further examples cites Polakiewicz, Verpflichtungen 20. 191 Belilos v Switzerland App no 10328/83 (ECtHR, 29 April 1988) para 78; F. v Switzerland App no 11329/85 (ECtHR, 18 December 1987) para 43. 192 Vocaturo v Italy App no 11891/85 (ECtHR, 24 May 1991) para 21, with reference to Zanghì v Italy App no 11491/85 (ECtHR, 19 February 1991), see blow instantly. 193 Campbell and Cosans v The United Kingdom (Article 50) App nos 7511/76, 7743/76 (ECtHR, 23 March 1983) para 16.

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Airey the Court stated, after referring to the respondent State’s power to choose the means to be used to implement the rights under Article 6, that “[in] any event, it is not the Court’s function to indicate, let alone dictate, which measures should be taken; all that the Convention requires is that an individual should enjoy his effective right of access to the courts in conditions not at variance with Article 6 … ”.194 Therefore, with reference to the Contracting States’ choice of means, the Court has not only refused to give orders concerning non-pecuniary195 individual measures, but it has also refused to direct the respondent State to take measures which would have exceeded the sphere of the individual applicant’s interests, i.e. general measures. As regards the latter, the Court was particularly clear in Zanghì: In the course of proceedings the applicant had requested the Court to indicate measures that should be introduced by the respondent State to remedy the dilatoriness he had alleged to be characteristic for the administration of justice in Italy. In response to that request the Court stressed that it was for the State concerned to choose the means to be used in its domestic legal system to redress the situation that had given rise to the violation of the Convention196—and refused to act as requested by the applicant. In McGoff the Court also refused to order the respondent State to ensure that similar breaches would not occur in the future, since it was not empowered to direct the respondent State to take this action.197 The Court’s understanding of the Contracting States’ discretion aligns with opinions expressed in legal doctrine. G. Ress highlights that the Court was not empowered by the Convention to prescribe specific measures in the operative part of a judgment; it was for the Contracting State concerned to draw the consequences from the finding of a violation.198 Later, G. Ress commented more reservedly on the matter and said that, in any case in the light of present case-law, the Court was not allowed to specify the obligations deriving from Article 46 § 1.199 C. Grabenwarter and K. Pabel point out that the Contracting States enjoyed a freedom of choice 194 Airey v Ireland App no 6289/73 (ECtHR, 9 October 1979) para 26. The Court stated at the same time that a particular measure already taken by the respondent State constituted a means to safeguard the rights under Article 6 and indicated another possible measure. 195 According to Article 41 the award of pecuniary individual measures undoubtedly lies within the competences of the Court. 196 Zanghì v Italy App no 11491/85 (ECtHR, 19 February 1991) para 26. 197 McGoff v Sweden App no 9017/80 (ECtHR, 26 October 1984) para 30 et seq. 198 Ress, ‘Wirkung’ 233 et seq. 199 Ress, ‘Wirkung’ [1996] EuGRZ 351.



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as regards the implementation of a judgment finding a violation; and that this was, in particular, a consequence of the declaratory nature of the judgments of the Court.200 L. Wildhaber refers to the subsidiary character of the Strasbourg system, implying that it was for the national authorities to choose the means to implement the Convention.201 J. Callewaert expresses a similar opinion.202 Thirdly, in addition to a declaratory nature of its judgments and the Contracting States’ choice of means in the execution process, the Court has stated that it was not empowered by the Convention to make directions in relation to the operation of its judgments, since, by virtue of (current) Article 46 § 2, the responsibility for supervising the execution of the Court’s judgment rested with the Committee.203 While the assumption of an exclusive discretion of the Contracting States in deciding what measures must be taken limits the Court’s competences to the benefit of the Contracting States, the Court’s reference to Article 46 § 2 does so benefiting the Committee. In that regard, L. Caflisch argues in legal doctrine that the Committee may induce the respondent State to alter domestic legislation in order to prevent the recurrence of similar violations—which lay outside the Court’s power.204 L. Wildhaber divides between establishing the existence of a violation, which fell to the Court, and supervision of the execution of judgments, which fell to the Committee;205 this indicates that, in L. Wildhaber’s opinion, the Court may not dictate remedial measures in a judgment finding a violation. Merging these principles would lead to the following structure of the Strasbourg system of human rights protection: It was the Court’s task to establish if there had been a violation of the Convention, however, except for the award of pecuniary damage under Article 41, it was not its task to determine which specific remedial obligations this violation entailed. The respondent State was under an obligation to abide by this judgment and to  take the required individual and/or general measures to remedy the 200 Grabenwarter, Pabel, Menschenrechtskonvention 103. 201 Statement by L. Wildhaber (Personal communication 28 March 2000) (2000) 21 HRLJ 285. 202 Callewaert, ‘Judgments’ 729. 203 Soering v The United Kingdom App no 14038/88 (ECtHR, 7 July 1989) para 125 et seq; cf. Akdivar and Others v Turkey (Article 50) App no 21893/93 (ECtHR, 1 April 1998) para 47. This argumentation by the Court is also highlighted by Polakiewicz, ‘Execution’ 57. 204 Caflisch, ‘Pilot-Fälle’ 521. 205 Wildhaber, ‘Letter’.

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violation found.206 In doing so it was free to choose the means to comply with those obligations—the Contracting States enjoyed discretionary powers in this respect. However, the Contracting States’ discretionary powers in executing a judgment were subject to the Committee’s competence to supervise execution of judgments of the Court (Article 46 § 2). The Committee may only make suggestions with respect to the execution of judgments, but it may not dictate specific measures to be taken; it may merely assess and decide if the measures actually taken by the Contracting State concerned sufficed to comply with a judgment of the Court.207 The Explanatory Report to Protocol No. 14 seems to uphold the “traditional” view as well, according to which the Court was not empowered to go beyond finding a violation of the Convention and awarding just satisfaction to the applicant: In the context of the new competence of the Court to rule on questions of interpretation of a judgment (Article 46 § 3), the drafters state that the aim of this new competence was to enable the Court to give an interpretation of a judgment and not to pronounce on the measures taken by a Contracting State to comply with that judgment.208 In the following it shall be examined if the Court has always adhered to its principle, according to which it was not empowered to prescribe (general) remedial measures in its judgments. 17.3.2 Determinations of Remedial Measures in the Court’s Case-Law In Ireland v The United Kingdom (1978) the Court still refused to consider whether its functions extended, in certain circumstances, to addressing consequential orders to Contracting States; it merely stated that the sanctions available to it did not include the power to direct States to institute criminal or disciplinary proceedings in accordance with its domestic  law.209 However, in several later judgments the Court highlighted the  respondent States’ obligation to take general measures following a 206 Cf. Chapter 13 (p 70). 207 Cf. Rule 6 § 2, Rules 16 and 17 of the Committee of Ministers’ ‘Rules for the Super­ vision of the Execution of Judgments’; Frowein, Villiger, ‘Report’ 45; Okresek, ‘Umsetzung’ 172 with further reference; with reference to the travaux préparatoires apparently also Polakiewicz, Verpflichtungen 17; differently Judge Zagrebelsky, Partly Dissenting Opinion in Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006). 208 Council of Europe, ‘Explanatory Report to Protocol No 14’ para 97. In Sejdovic, the respondent Government adopted a similar view: Sejdovic v Italy App no 56581/00 (ECtHR, 1 March 2006) para 117. 209 Ireland v The United Kingdom App no 5310/71 (ECtHR, 18 January 1978) para 186 et seq; cf. Polakiewicz, Verpflichtungen 18.



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judgment. Those determinations were usually as abstract and general as in Marckx (1979), where the Court stated in its reasoning that its decision inevitably had effects extending beyond the confines of the particular case, especially since the violations found stemmed directly from provisions of internal law and not from individual measures of implementation.210 In Norris the Court again used this phrasing and added that it was for the respondent State to take the necessary measures in its domestic legal system to ensure the performance of its obligations under (current) Article 46.211 Certainly, these statements of the Court lack substantial features of the later practice of ordering remedial measures as can be found in the pilot judgments. The Court’s indications are particularly abstract and general, thus no concrete remedial measures may apparently be derived from them; furthermore, they are part of the reasoning rather than of the operative part of the respective judgment, so it is disputable if the Court claimed any legal effect on the Contracting States concerned at all. Nevertheless, the Court made clear, in principle, that general remedial measures were to be taken; this exceeded a mere declaration that the Convention had been violated. Thus, the Court focused on the respondent States’ obligations resulting from its judgment, from which it follows that the judgments in the cases of Marckx and Norris can be regarded as rudiments of the further development. Going a small step further, in its reasoning in Johnston and Others (1986) the Court stated, after emphasizing that it was for the respondent State to choose the means to be utilized in its domestic law for performance of its obligation under (current) Article 46, that in making its choice the respondent State had to ensure that the requisite fair balance was struck between the demands of the general interest and of the community and the interests of the individual.212 Thus, in Johnston and Others the Court also commented on the content of the measures to be taken following the judgment. True, the Court’s determination can be seen as merely referring to the demands of the Convention in abstract, as just reciting what the Convention requires generally. On the other hand, these findings can also be interpreted as prompting the respondent State to take certain measures in that particular case. By generally referring to the obligations deriving from the Convention in a certain field the Court also indicated that in 210 Marckx v Belgium App no 6833/74 (ECtHR, 13 June 1979) para 58. 211 Norris v Ireland App no 10581/83 (ECtHR, 26 October 1988) para 50. 212 Johnston and Others v Ireland App no 9697/82 (ECtHR, 18 December 1986) para 77.

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the case under consideration particular remedial measures were called for following its judgment. However, it is to be highlighted that the Court did not yet include imperative determinations in the operative part of the judgment. From the 1990s on the Court made concrete recommendations of individual measures to be taken following its judgments in several judgments concerning infringements of Article 1 of Protocol No 1. In its reasoning in Hentrich the Court stated that the best form of redress was, in principle, for the State to return the land; failing that the calculation of pecuniary damage had to be based on the current market value of the land.213 Those recommendations later turned into express orders located in the operative part of the respective judgment: In Papamichalopoulos and Others the Court, while upholding that the Contracting States were “in principle free to choose the means whereby they will comply with a judgment”,214 held in the operative part that the respondent State was to return to the applicants the land in issue within six months, failing which the respondent State had to pay compensation.215 In its elaborations as to the required remedial measures the Court emphasized the gravity of the infringements of the applicants’ rights, which might have influenced the Court’s decision to formulate an express order of non-pecuniary measures in the operative part.216 Similarly, in Brumărescu the Court ordered the respondent State to return the house in issue and the land on which it was situated to the applicant within six months, failing which the respondent State had to compensate the applicant.217 Before the first pilot judgment was issued, the peak of this development was reached in cases concerning unlawful detentions. In Assanidze, which was delivered only several months before the first pilot judgment in 2004, the Court initially stated that, in general, it was primarily for the State 213 Hentrich v France App no 13616/88 (ECtHR, 22 September 1994) para 71. 214 Papamichalopoulos and Others v Greece (Article 50) App no 14556/89 (ECtHR, 31 October 1995) para 34. 215 Papamichalopoulos and Others v Greece (Article 50) App no 14556/89 (ECtHR, 31 October 1995) 2nd and 3rd operative provision. 216 The Court highlighted that the act of the Greek Government which the Court held to be contrary to the Convention had been a taking by the State of land belonging to private individuals, which had lasted twenty-eight years, the authorities ignoring the decisions of national courts and their own promises to the applicants to redress the injustice committed in 1967 by the dictatorial regime (Papamichalopoulos and Others v Greece [Article 50] App no 14556/89 [ECtHR, 31 October 1995] para 36; cf. furthermore Leach, ‘Approaches’ 151 et seq.). 217 Brumărescu v Romania (Article 41) App no 28342/95 (ECtHR, 23 January 2001) 1st and 2nd operative provision.



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concerned to choose the means to be used in its domestic legal order in order to discharge its legal obligation under Article 46 of the Convention.218 Nevertheless, it held in the operative part of the judgment that “the respondent State must secure the applicant’s release at the earliest possible date”.219 This approach was applied similarly in Ilaşcu and Others where the Court, again in the operative part, held “unanimously that the respondent States are to take all necessary measures to put an end to the arbitrary detention of the applicants still imprisoned and secure their immediate release”.220 It follows that, until the first pilot judgment was delivered, the Court had intensified its practice of directing specific remedial measures over decades. In the early judgments in the cases of Marckx, Norris and Johnson and Others the Court did not explicitly intend to give orders, but it merely elaborated on the obligations which followed from its judgments in a particularly abstract way. In a further step, the Court included imperatively phrased directions to take non-pecuniary measures in the operative part of its judgments,—however, the Court ordered the Contracting States concerned to compensate the respective applicants as an alternative.221 Finally, in the cases of 2004 concerning unlawful detention the Court gave the unconditional and imperative order to release the applicant from prison. It is also to be highlighted that it was only in the expropriation- as well as in the release from detention-cases that the Court brought its practice of ordering remedial measures in contrast to its principal rule, according to which it was not empowered to give directions as regards execution of its judgments. Thus, the Court’s repeated statement that it was for the State concerned to choose the means in order to discharge its legal obligations following a judgment finding a violation—from which the Court followed that it had no own competences to determine those means—is apparently considered by the Court as a principle which allows derogation. The Court appears to be of the opinion that it was, under certain circumstances, empowered to determine the Contracting States’ obligations to take remedial measures. This approach is reflected in the Court’s phrasing in this

218 Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004) para 202. 219 Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004) 14th operative provision. 220 Ilaşcu and Others v Moldova and Russia App no 48787/99 (ECtHR, 8 July 2004) 22nd operative provision. 221 Cf. as to the implications of this alternative order Leach, ‘Approaches’ 152.

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regard, saying that “in principle” or “in general” the Contracting States enjoyed discretionary powers as regards the necessary remedial measures.222 In my opinion, it may not necessarily be followed from those judgments that the Court’s approach of ordering remedial measures as adopted in the pilot judgment procedure was the next logical step following those judgments: On the one hand, orders to take general measures had been unprecedented until the judgment in Broniowski; all determinations in previous judgments had concerned (non-pecuniary) individual measures. On the other hand, none of those judgments had dealt with systemic or specific widespread problems but with single incidents. True, as regards the practice of ordering specific remedial measures, the judgments in the cases of Assanidze and Brumărescu are to be seen in a close connection with Broniowski.223 However, the pilot-judgment procedure added considerable aspects compared to the former judgments. Considering this, it is to be examined if the declaratory character of the Court’s judgments, the Contracting States’ choice of means in the execution process, and the Committee’s power to supervise execution of judgments are indeed opposed to the Court’s approach of directing remedial measures, i.e. if those principles are capable of restricting the Court’s competences to determine specific remedial measures in its judgments. As an aspect of this examination it is to be asked if the Court has only exercised restraint in refusing to determine the Contracting States’ obligations following judgments finding a violation, although it would in principle be empowered to do so; or if the Court indeed lacks competences to order remedial measures with a binding effect under the Convention.224 As a first step in this examination, the relation between these restricting principles referred to by the Court shall be analysed in the following. 17.3.3 Relation between the Court’s Criteria The Court as well as legal commentators have invoked three major aspects when denying competences of the Court to explicitly determine the 222 Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004) para 202; Papamichalopoulos and Others v Greece (Article 50) App no 14556/89 (ECtHR, 31 October 1995) para 34. 223 Cf. also Chapter 4.3 (p 21 above). 224 Cf. for instance Leach, ‘Approaches’ 150, who speaks of a “practice” of the Court to issue solely declaratory judgments. Also Petzold, ‘Subsidiarity’ 49: “in performing their supervisory functions, the Convention institutions are subject to certain limits or at least are called upon to exercise a degree of judicial self-restraint”.



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Contracting States’ remedial obligations in a judgment: First, is has been claimed that the Court’s judgments were essentially declaratory; secondly, that they would leave the choice of means when executing a judgment to the Contracting State concerned; and thirdly, that it was for the Committee to decide on the required remedial measures when supervising the execution of a judgment.225 The question arises, how these factors may affect the Court’s competences, in other words, what they imply in terms of competences being granted to the Court by Convention provisions. Especially the concepts of the declaratory nature of the Court’s judgments and the Contracting States’ discretion in executing judgments require some preliminary analysis. Initially, it is to be stated that it is dubious which of those two aspects the Court has considered responsible for its lack of power to prescribe remedial measures. The Court has invoked both principles with a varying focus on either one or both of them: It has repeatedly stated that the Convention did not empower it to order specific remedial measures, since the Court’s judgment left to the Contracting State concerned the choice of the means to be used in its domestic legal system to give effect to its obligation under Article 46.226 In most of those cases the Court did not invoke expressly that its judgments were essentially declaratory. However, it did refer to its judgment in Marckx (or to judgments which, in turn, referred to Marckx)227 where it had stated that its judgments were essentially declaratory and left the choice of means when executing the judgment to the Contracting State concerned.228 Some later judgments expressly continued this approach of combining both concepts: In Assanidze the Court 225 See Chapter 17.3.1 (p 145) and the judgments cited there. 226 Belilos v Switzerland App no 10328/83 (ECtHR, 29 April 1988) para 78; Pauwels v Belgium App no 10208/82 (ECtHR, 26 May 1988) para 41; Zanghì v Italy App no 11491/85 (ECtHR, 19 February 1991) para 26; Vocaturo v Italy App no 11891/85 (ECtHR, 24 May 1991) para 21; Demicoli v Malta App no 13057/87 (ECtHR, 27 August 1991) para 45; Campbell and Cosans v The United Kingdom (Article 50) App nos 7511/76, 7743/76 (ECtHR, 23 March 1983) para 16; Akdivar and Others v Turkey (Article 50) App no 21893/93 (ECtHR, 1 April 1998) para 47; Papamichalopoulos and Others v Greece (Article 50) App no 14556/89 (ECtHR, 31 October 1995) para 34. In Vermeire, the Court basically acknowledged the Contracting States’ choice of means; it held at the same time, however, that this principle did not allow it to suspend the application of the Convention while awaiting the required reforms in the domestic legal order, Vermeire v Belgium App no 12849/87 (ECtHR, 29 November 1991) para 26. 227 Airey v Ireland App no 6289/73 (ECtHR, 9 October 1979) para 26; implicitly X v The United Kingdom (Article 50) App no 7215/75 (ECtHR, 18 October 1981) para 15; F. v Switzerland App no 11329/85 (ECtHR, 18 December 1987) para 43. 228 Marckx v Belgium App no 6833/74 (ECtHR, 13 June 1979) para 58.

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reiterated that its judgments were essentially declaratory in nature, and that, in general, it was primarily for the State concerned to choose the means to be used to execute the judgment.229 In Nasrulloyev the Court refused to recommend to the respondent Government to amend domestic legislation, since “the Court is not empowered under the Convention to issue recommendations of the kind sought by the applicant, for its judgments are essentially declaratory in nature. In general, it is primarily for the State concerned to choose the means …”.230 As a first approach to clarifying the relation between the declaratory character of the Court’s judgments and the Contracting States’ choice of means in the execution process it is to be asked what the concept of the Court’s judgments being “essentially declaratory”231 is intended to mean. Literally speaking, a reference to a “declaratory” character of the Court’s judgments does not necessarily exclude powers of the Court to determine the Contracting States’ obligations following a judgment finding a violation: Determinations of remedial measures may just as well be regarded as declarations, namely as a declaration of the existence of obligations to take specific remedial measures.232 This is reflected in the Court’s phrasing in the operative part of its pilot judgments where the Court, for instance, “Holds that the respondent State must set up … an effective remedy … ”:233 Thus, the Court declared that the Contracting State concerned was under a certain obligation. Therefore, it may not be the Court’s restriction to deliver declaratory judgments which might be opposed to orders of the Court to take specific remedial measures, but it may only be a restriction of its competences to declaring if the Convention has been violated. As regards the meaning of the Court’s judgments being essentially declaratory, there are divergent statements in case-law and legal doctrine. It is argued that the Court, as a result of its judgments being declaratory, could not annul or repeal national legal acts, be them legislative or 229 Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004) para 202. 230 Nasrulloyev v Russia App no 656/06 (ECtHR, 11 October 2007) para 95; cf. also Ülke v Turkey App no 39437/98 (ECtHR, 24 January 2006) para 73 (refusal to request the respondent Government to enact legislation); principally, however with subsequent indication of remedial measures, Öcalan v Turkey App no 46221/99 (ECtHR, 12 May 2005) para 210 (request for a retrial). 231 Nasrulloyev v Russia App no 656/06 (ECtHR, 11 October 2007) para 95. 232 Cf. in this respect the Court’s refusal to “make consequential orders or declaratory statements” (emphasis added) in Akdivar and Others v Turkey (Article 50) App no 21893/93 (ECtHR, 1 April 1998) para 47. 233 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) 6th operative provision.



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individual legal acts.234 As is pointed out in legal doctrine, the Court being not empowered to quash domestic court decisions or to amend domestic legislation is a structural feature of international courts in general which are not competent, except by way of an explicit empowerment, to directly interfere with national legal acts.235 According to M. Breuer, the Court’s judgments being declaratory only meant a lack of power to prescribe measures which were directly enforceable in the national legal orders; however, it was well possible for the Court to determine a Contracting State’s obligation to take certain remedial measures in a judgment.236 As far as these interpretations of a declaratory nature of the Court’s judgments are concerned, it suffices to say that they are of minor relevance in the context of the pilot-judgment procedure: In its pilot judgments the Court has never intended to alter national legislation or decisions of judicial or administrative authorities by way of its own judgment, and it has never included respective findings in the operative part of a pilot judgment. Only in Greens and M.T. the Court directed the respondent State to alter specific laws in its domestic legal order,237 which resembles an interference with domestic legal acts at first glance. However, in Greens and M.T. the Court did not attempt or claim to alter the respective national provisions itself, i.e. by way of its own judgment; but it merely ordered domestic legislation to be brought in line with Convention standards, so that this task was for the respondent State to effectuate by its own means. In most other pilot judgments the Court’s orders were more abstract and did not focus on specific domestic laws, but merely ordered that the Convention was to be implemented in the field under consideration.238 Therefore, as far as the declaratory nature of the Court’s judgments means that it is not empowered to interfere with domestic legal acts, there is no conflict with the Court’s course of action in the pilot judgments.

234 Marckx v Belgium App no 6833/74 (ECtHR, 13 June 1979) para 58; Matscher, ‘Verfahren’ 525; Frowein, Villiger, ‘Report’ para 30. 235 Frowein, ‘Binding Force’ 261; Schindler, ‘Wirkungen’ 275 et seq. with further reference; cf. also Frowein, Peukert, Menschenrechtskonvention 603. 236 Breuer, ‘Abhilfemaßnahmen’ 257 et seq. 237 Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) 6th operative provision. 238 Cf. for instance Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) 4th operative provision: “secure the implementation of the property right in question in respect of the remaining Bug River claimants or provide them with equivalent redress in lieu”. Cf. as to the Court’s approaches to prescribing general remedial measures Chapter 17.5.5.2 (p 215).

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Nevertheless, it clearly derives from the Court’s case-law that the Court did also link the declaratory nature of its judgments with a lack of competences to prescribe remedial measures: In Nasrulloyev the Court stated that it was not empowered to issue recommendations under the Convention, for its judgments were essentially declaratory in nature.239 A relation between the declaratory character of the Court’s judgments and a lacking power to prescribe remedial measures is also considered in legal doctrine.240 Considering this it is to be noted that terminology is not at best in this respect, since the notion of the Court’s judgments being declaratory refers to distinguishable concepts of Convention law: On the one hand, to a lack of power to directly interfere with domestic legal acts, and on the other hand, to a lack of power to prescribe remedial measures in its judgments beyond the award of just satisfaction. Apart from that it is to be asked if the concept of a declaratory nature of its judgments is decisive in the way it is also used by the Court and in legal doctrine, namely as saying that the Court was not empowered to prescribe remedial measures, thus implicitly, that the Court was only empowered, except for the award of just  satisfaction under Article 41, to find if the Convention has been violated.241 Accordingly, it is to be said that, by reference to a declaratory “nature”242 of its judgments, the Court as well as legal doctrine actually narrow the Court’s competences. Thus, this concept focuses in fact on the limits of the Court’s powers, that is to say on the question which procedural steps the Court is empowered to take in its judgments, rather than on the nature of its judgments. The Court not being in a position to prescribe remedial measures is not a consequence of the Court’s judgments being declaratory by nature, but may only be a consequence of the Convention granting to the Court only competences to declare if the Convention was violated. In the light of the foregoing paragraphs the possible meaning of the notion of the Court’s judgments being essentially declaratory is to be examined, including its relation to the Contracting States’ discretion in the execution process.

239 Nasrulloyev v Russia App no 656/06 (ECtHR, 11 October 2007) para 95. 240 Karl, ‘Vollzug’ 41; implicitly Lambert Abdelgawad, ‘Execution’ 12; cf. Judge Costa, Partly Concurring Opinion to Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004). 241 Marckx v Belgium App no 6833/74 (ECtHR, 13 June 1979) para 58; Nasrulloyev v Russia App no 656/06 (ECtHR, 11 October 2007) para 95. 242 Cf. Nasrulloyev v Russia App no 656/06 (ECtHR, 11 October 2007) para 95: the Court’s “judgments are essentially declaratory in nature”.



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On the one hand, the declaratory character of the Court’s judgments could be understood as simply saying that no Convention provision empowered the Court to go beyond declaring that the Convention has been violated, without taking into consideration any aspects of a choice of means of the Contracting States in the execution process. Considering that (the organs of) international organizations may only take such actions which can be based on an empowering provision in the founding treaty of the organization,243 the absence of a provision which empowered the Court to prescribe remedial measures would, taken by itself, suffice to reach the conclusion that the Court was not competent to prescribe remedial measures. If the Convention indeed lacked such an empowering provision, no additional reference to the Contracting States’ choice of means in the execution process would be required to conclude that the Court was not competent to prescribe remedial measures. Therefore, as a first step of examination it is to be examined if Convention provisions may be interpreted as empowering the Court to prescribe (general) remedial measures in its judgments. If this question was to be answered in the negative, the Contracting States’ discretion in the execution process (as well as the Committee’s powers in supervising execution of judgments) would not be relevant as regards the Court’s competences, since the question as to respective competences of the Court would already have been answered in the negative. On the other hand, if provisions exist which may be interpreted as empowering the Court to prescribe remedial measures, the Contracting States’ choice of means in the execution process may come into play after all, since it is to be asked if this choice of means could narrow the Court’s competences. However, if this choice of means is indeed relevant for the Court’s competences depends on its nature and origin: First, it could be interpreted as only being a consequence of the absence of provisions which empower the Court to prescribe remedial measures: If the Court’s competences were limited, due to a lack of empowering provisions, to declaring if the Convention was violated, it would be immanent that it basically would be within the Contracting States’ discretion to decide on the required means to comply with a judgment, since the Court would not be competent to elaborate on that question.244 In this understanding, the 243 Klein, Schmahl, ‘Organisationen’ 351; Weiß, Kompetenzlehre 358; Breuer, ‘Abhilfemaßnahmen’ 259. 244 Provided that those means are compatible with the conclusions set out in the Court’s judgments (cf. Scozzari and Giunta v Italy App nos 39221/98, 41963/98 [ECtHR,

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absence of a provision empowering the Court to prescribe remedial measures would establish and cause the Contracting States’ discretion in the execution process; this discretion would be a result of the lack of provisions which concede competences to the Court to determine remedial obligations. Such a perspective is indicated by W. Karl who notes that declaratory judgments cause considerable discretionary powers as regards the execution of a judgment.245 Also C. Grabenwarter and K. Pabel point out that, in view of the declaratory character of the Court’s judgments, it was, as a general rule, a matter of the respondent State to choose those measures which are necessary to comply with Article 46 § 1.246 According to Judge Costa, the Court had regarded its decision as being essentially declaratory, so that when it finds that there has been a violation of the Convention it leaves the choice of the means in executing the judgment to the State.247 These statements indicate that the Contracting States’ choice of means only followed from an absence of Convention provisions empowering the Court to prescribe remedial measures. If an examination of the Contracting States’ choice of means indeed led to the conclusion that it was only a result of an absence of Convention provisions empowering the Court to prescribe remedial measures, then this choice of means would be irrelevant when ascertaining the Court’s competences: The scope or extent of the Contracting States’ choice of means would in any case depend exclusively on the existence of provisions which empower the Court (possibly to determine remedial measures) and would not be capable of restricting the Court’s powers. Secondly, the Contracting States’ choice of means could not only be a result of an absence of Convention provisions which empowered the Court to prescribe remedial measures, thus a Convention principle fully depending on the scope of the Court’s powers. Instead, this choice of means could also be an own Convention principle saying that the Contracting States were free in choosing the means to execute a judgment. This has repeatedly been the Court’s approach when it refused to prescribe remedial measures and referred primarily to the Contracting States’

13 July 2000] para 249) and subject to competences of the Committee in supervising execution of a judgment according to Article 46 § 2. 245 Karl, ‘Vollzug’ 41. 246 Grabenwarter, Pabel, Menschenrechtskonvention 103. 247 Partly Concurring Opinion to Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004).



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choice of means in the execution process.248 Furthermore, in several judgments the Court linked the Contracting States’ discretion in the execution process with Article 1, rather than with the declaratory nature of the Court’s judgment,249 which supports the assumption of it being an own Convention principle rather than one deriving from the scope of the Court’s powers. M. Breuer also highlights judgments which include a reference to Article 1 in the context of the Court’s elaborations on the Contracting States’ choice of means: The Court was to be concurred with in deducing the Contracting States’ discretion in the execution process (with which the author apparently refers to lacking powers of the Court to prescribe remedial measures) from Article 1, instead from the declaratory nature of its judgments.250 W. Okresek also links the Court’s refusal to prescribe remedial measures with the Contracting States’ freedom to choose the means to execute a judgment.251 From this point of view, restrictions of the Court’s powers could be drawn: If it was to be assumed as an own Convention principle that the Contracting States were free in choosing the means to execute a judgment, this would necessarily imply and entail that the Court’s competences to determine those means of execution were limited. If the Contracting States had indeed the choice of means to execute a judgment, this would have to be taken into consideration when interpreting Convention provisions which basically appear to empower the Court to prescribe remedial measures: If the Contracting States’ choice of means meant that it was for them to decide how to execute a judgment, then it would not be for the Court to prescribe any means of execution—the Court would not be empowered to do so. Therefore, when examining provisions empowering the Court to prescribe remedial measures, the Contracting States’ discretion in the execution process has also to be taken into consideration. Such a comprehensive interpretation is also required by Article 31 of the Vienna Convention,252 according to which a treaty 248 Cf. for instance Pauwels v Belgium App no 10208/82 (ECtHR, 26 May 1988) para 41; Demicoli v Malta App no 13057/87 (ECtHR, 27 August 1991) para 45; Campbell and Cosans v The United Kingdom (Article 50) App nos 7511/76, 7743/76 (ECtHR, 23 March 1983) para 16. 249 Papamichalopoulos and Others v Greece (Article 50) App no 14556/89 (ECtHR, 31 October 1995) para 34; cf. also Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004) para 202. 250 Breuer, ‘Abhilfemaßnahmen’ 257 et seq. 251 Okresek, ‘Artikel 46 EMRK’ 5. 252 According to the Court, the Convention must be interpreted in the light of the rules set out in the Vienna Convention, thus so far as possible consistently with the other

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shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Therefore, the words of the Convention—and with that Convention provisions as such—are to be interpreted in their context, thus also in the light of the remaining provisions of the Convention.253 It follows that, subsequent to an interpretation of Convention provisions, which may be interpreted as empowering the Court to prescribe remedial measures, the Contracting States’ choice of means in the execution process is to be examined. This examination shall ascertain if from this choice of means any restrictions of the Court’s competences may follow, if such competences basically existed. This also applies to the Committee’s power to supervise execution of judgments according to Article 46 § 2. In this regard, it is also to be asked if competences in the aftermath of judgments finding a violation are (exclusively) conferred on the Committee, rather than on the Court. To sum up, there are three steps of examination to be conducted in order to ascertain if the Court may determine remedial measures in its judgments: First, it is to be asked if there are Convention provisions which may basically be interpreted as empowering the Court to prescribe remedial measures (Chapter 17.4). Thereupon, it is to be analysed if other Convention principles are opposed to interpreting these provisions as empowering the Court to prescribe remedial measures; these Convention principles are the Contracting States choice of means or its scope of discretion when executing a judgment (Chapter 17.5) and the Committee’s powers when supervising the execution of judgments of the Court (Chapter 17.6). 17.4 Convention Provisions Empowering the Court to Determine Remedial Obligations 17.4.1 Article 46 § 1 Initially, it is to be highlighted that no Convention provision contains an explicit legal basis for the Court’s practice of ordering general remedial principles of international law of which it forms a part: Golder v The United Kingdom App no 4451/70 (ECtHR, 21 February 1975) para 29; Mamatkulov and Askarov v Turkey App nos 46827/99, 46951/99 (ECtHR, 4 February 2005) para 111. 253 Cf. Article 31 of the Vienna Convention; generally Villiger, Vienna Convention 427; Verdross, Simma, Völkerrecht 492.



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measures in its judgments finding a violation of the Convention, as it has been done in the pilot judgments.254 At the same time, the Court’s course of action is not expressly precluded by the Convention.255 In legal doctrine it has been claimed that the Court based its course of action in the pilot judgments on Article 46 § 1. According to J. Eschment, the Court referred to an extensive interpretation of Article 46 § 1 when determining the Contracting States’ obligations; thus, as this author states, any further reference to implied powers or annexed competences256 was unfounded.257 Also C. Grabenwarter, K. Pabel and M. Fyrnys seem to identify Article 46 § 1 as the provision which the pilot-judgment procedure was based on by the Court.258 In my view, it is disputable, first, if the Court indeed based its practice of determining remedial obligations on Article 46 § 1, respectively on an extensive interpretation of that provision. True, with reference to Article 46 § 1 (read in conjunction with Article 1), the Court assumed an obligation of the Contracting States concerned to take (general) measures in order to resolve structural dysfunctions of human rights protection on the national level.259 However, the Court merely referred to Article 46 § 1 when examining which obligations followed for the respective Contracting State from this provision in the concrete case under consideration; the Court stated that it “wishes to consider what consequences may be drawn for the respondent State from Article 46 of the Convention.”260 The question which remedial obligations exist in a concrete case is to be distinguished from the question if the Court is empowered to consider which remedial obligations exist in a concrete case. It is to be distinguished between remedial obligations which follow from a judgment according to Article 46 § 1 (and the specific obligations inherent in this provision) on the one hand,261 and powers of the Court to explicitly determine those obligations on the other hand. 254 Likewise Schmahl, ‘Piloturteile’ 377; Breuer, ‘Piloturteilstechnik’ 2. 255 Cf. with respect to the pre-pilot judgment time Polakiewicz, Verpflichtungen 147. 256 Which are argued by M. Breuer (Breuer, ‘Urteilsfolgen’ 449), cf. as to this approach Chapter 17.4.2 (p 165). 257 Eschment, Musterprozesse 106. 258 Grabenwarter, Pabel, Menschenrechtskonvention 105; Fyrnys, ‘Pilot Judgments’ 1251. 259 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 192; Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) para 60; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 78. 260 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 192; similarly Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 89. 261 Cf. as to the remedial obligations which follow from Article 46 § 1 Chapter 13 (p 70).

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The Court does not explicitly deal with the question if it is empowered to determine remedial obligations; in particular, the Court does not state that the stipulation of the Contracting States’ obligations to take remedial measures in Article 46 § 1 included the power of the Court to determine a Contracting State’s remedial obligations. In fact, the Court did not refer to any particular legal basis in the Convention at all when elaborating on the appropriateness of determining the respondent State’s remedial obligations in a judgment. As regards a legal foundation of its approach, the Court merely repeatedly stated that it “may adopt a pilot-judgment procedure allowing it to … indicate specific measures or actions to be taken by the respondent State to remedy them”262 and referred to the need to guarantee its future effectiveness which was endangered by systemic problems and repetitive applications.263 While J. Eschment is to be conceded that the Court’s practice of ordering (general) remedial measures is closely related to the Court’s interpretation of Article 46 § 1 and Article 1 as obliging the Contracting States to take general remedial measures beyond the individual applicant’s case,264 he is to be disagreed with in his opinion that the Court invoked that provision in order to justify its determinations of remedial obligations in the operative part of its judgments. Nevertheless, it may be examined if Article 46 § 1 is suitable as a legal basis for the Court’s approach of determining the Contracting States’ remedial obligations in its judgments. The wording of the provision does not support this approach; Article 46 § 1 deals with the Contracting States’ obligations and not with powers of the Court. Initially, from provisions governing the Contracting States’ obligations it may not be followed that the Court was competent to determine these obligations in a concrete case: The organs of international organizations have only those powers and competences which were conferred on them;265 a stipulation of obligations of the members of an international organization is not to be considered as an empowerment of (organs of) the international organization to specify those obligations in individual cases. Article 46 § 1 merely stipulates the binding effect of judgments of the Court and is regarded as 262 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 6; Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) para 50; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 80; Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) para 61; Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) para 61; Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 107. 263 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 190 et seq. 264 Cf. again Eschment, Musterprozesse 106. 265 Cf. Klein, Schmahl, ‘Organisationen’ 351; Weiß, Kompetenzlehre 358 with further reference.



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legal basis for the Contracting States’ obligations following a judgment finding a violation. Thus, it merely stipulates the overall obligation to take the necessary remedial measures;266 however, it does not stipulate which specific remedial measures have to be implemented in individual cases— leave alone any competence of the Court determine or specify the respective obligations.267 The Court has invoked arguments concerning the effectiveness of the Strasbourg system in order to support its course of action in the pilotjudgment procedures.268 An approach to assume competences resulting from a threat to the future effectiveness of the Court appears to be best founded, if at all, on provisions which actually stipulate competences of the Court, as it does Article 32, for instance.269 Questions concerning an effective functioning of the Strasbourg system which might be furthered by the pilot-judgment procedure will therefore be discussed as a possible implication of Article 32.270 Since Article 46 § 1 does not, according to its phrasing, stipulate any competences of the Court, Article 32 appears to be a more suitable provision to base those approaches on. This applies similarly to the question if implied powers of the Court may be assumed with respect to the pilot-judgment procedure. Since this approach is built on the tasks and functions of (the organs of) international organizations, it will be dealt with in the context of provisions which govern the tasks and functions of the Court.271 17.4.2 Article 41 Article 41 empowers the Court to afford just satisfaction to the injured party—obviously, any direction of the Court in accordance with this provision creates corresponding obligations of the Contracting State concerned to act as directed.272 According to the wording of Article 41, the Court is only competent to afford just satisfaction if the internal law of the Contracting State concerned allows only partial reparation to be made. This restriction in Article 41 is narrowly interpreted. On the one hand, the Court acts on the assumption that it may award just satisfaction not only 266 Chapter 13 (p 70). 267 Likewise Breuer, ‘Piloturteilstechnik’ 2. 268 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 193. 269 According to Article 32, the jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the protocols thereto which are referred to it as provided in Articles 33, 34, 36 and 47. 270 Cf. Chapter 17.4.3 (p 168). 271 Cf. Chapter 17.4.6 (p 181). 272 Frowein, Peukert, Menschenrechtskonvention 602.

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if the internal law allows only partial reparation to be made, but also if it allows no reparation to be made at all.273 Beyond that, the Court has repeatedly held that it was empowered to award just satisfaction even if the internal law of the respondent State allowed full reparation to be made, since it was unacceptable to send the applicant back to the national level to submit his claims for redress there.274 Based on that interpretation of Article 41, the Court is empowered to order redress, irrespective of the means to compensate the victim of a violation in domestic law. When assuming a broad meaning of “satisfaction” in Article 41, as not only meaning financial compensation but also other acts aiming at providing full restitution,275 it could be argued that the Court was empowered to order the Contracting States to take particular remedial measures. True, the Court has repeatedly denied competences to order other measures than financial compensation. However, there are judgments in which the Court assumed broader competences and ordered non-financial remedial measures276—be it only as an alternative to financial redress.277 However, even if Article 41 was interpreted as empowering the Court to prescribe (also non-financial) remedial measures towards the applicant, it still does not explicitly concede to the Court any competence to determine remedial measures beyond the scope of the “injured party”, thus to expressly determine that the respondent State was bound to take general remedial measures in order to execute the judgment. This speaks against Article 41 as a legal basis for the Court’s approach of directing Contracting States to resolve systemic problems in their internal legal order. According to M. Breuer, the Convention conceded to the Court the competence to order cessation of a continuing violation of the Convention; this competences was annexed to its power to find that a violation had occurred.278 M. Breuer first elaborated on this approach with respect to 273 Okresek, ‘Art 41 EMRK’ 10; Frowein, Peukert, Menschenrechtskonvention 540. 274 De Wilde, Ooms and Versyp v Belgium (Article 50) App nos 2832/66 and others (ECtHR, 10 March 1972) para 16; Barberà, Messegué and Jabardo v Spain App nos 10588/83 and others (ECtHR, 13 June 1994) para 17; Papamichalopoulos and Others v Greece (Article 50) App no 14556/89 (ECtHR, 31 October 1995) para 40; Oğur v Turkey App no 21594/93 (ECtHR, 20 May 1999) para 98; Okresek, ‘Artikel 41 EMRK’ 10 et seq; Karl, ‘Art 41 EMRK’ 15; Frowein, Peukert, Menschenrechtskonvention 541. 275 In this respect, M. Breuer argues that “just satisfaction” could be interpreted as including the cessation of an on-going violation (Breuer, ‘Abhilfemaßnahmen’ 259 et seq.). 276 Eg. Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004) 14th operative provision. 277 Papamichalopoulos and Others v Greece (Article 50) App no 14556/89 (ECtHR, 31 October 1995) 2nd and 3rd operative provision. 278 “Annexkompetenz”: Breuer, ‘Abhilfemaßnahmen’ 261; again Breuer, ‘Urteilsfolgen’ 449.



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determinations of individual remedial measures in Assanidze in which the Court had explicitly ordered the applicant’s release from prison in the operative part of its judgment.279 In M. Breuer’s opinion, the duty to cease a violation of the Convention was to be identified with, or at least to be considered as being particularly closely related to, the (primary) obligation to act in conformity with provisions of international law. Applied to the Convention, the Court was empowered—implicitly by Article 41—to find that the Convention was violated, i.e. that the primary obligation to adhere to the Convention was violated. The Court’s power to find that the Convention was violated included its power to pronounce findings on the direct consequences of that violation; more concretely, its power to order cessation of a violation: Since the obligation to cease an on-going violation was closely related to the primary obligation to adhere to the Convention, the Court’s power to pronounce that the Convention (i.e. the primary obligation) was violated comprised also the power to order cessation of an on-going violation.280 According to M. Breuer, the Court may only make use of its competences in that regard if there was no scope of discretion left to the Contracting State concerned under the given circumstances, and if there were no binding judgments of domestic courts which were in conflict with the act of cessation envisaged by the Court.281 The author regards those conditions as being met in Broniowski and concludes that the Court’s course of action in that case had a legal basis in the Convention, namely in annexed competences to its power to pronounce that the Convention was violated. Several remarks are to be made with respect to the model of annexed competences to Article 41. First, it is to be noted that the Court did not invoke Article 41 or annexed competences to Convention provisions in order to corroborate its pilot-judgment approach. In fact, the Court did not invoke any specific Convention provision at all; it merely included its elaborations on the legitimacy of the pilot-judgment procedure in the section of the judgment which dealt with the implications of Article 46 § 1.282 Certainly, this fact does not necessarily render a reference to 279 Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004) 14th operative provision. 280 Breuer, ‘Abhilfemaßnahmen’ 260 et seq. 281 Breuer, ‘Urteilsfolgen’ 449; cf. as to the relevance of the Contracting States’ choice of means in the execution process Chapter 17.5 (p 193), and as to the Committee’s powers in supervising execution of a judgment Chapter 17.6 (p 225). 282 Eg. Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 192 et seq; cf. as to the implications of Article 46 § 1 Chapter 17.4.1 (p 162) already.

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Article 41 and annexed competences of the Court untenable from the outset.283 Secondly, the model of annexed competences is based on the assumption that the Court orders the cessation of a violation: Cessation of an ongoing violation was closely related to the primary obligation to adhere to obligations under the Convention; since the Court had the (annexed) competence to pronounce on the direct consequences of a violation of the primary obligation, it was also competent to order cessation.284 However, as was elaborated on above, the Contracting States’ obligation to take general measures—and the Court’s orders in its pilot judgments concerned general measures—is best be understood as aiming at the prevention of future similar violations or, generally, as Convention implementation according to Article 1—however, not as aiming at cessation.285 True, assuming that the Court’s orders aimed at Convention implementation in general, these orders are also closely related to the primary obligation to adhere to the Convention. From this it would follow that the Court was in fact empowered to order the implementation of the Convention in general—which can not at all be deduced from Article 41, which merely (implicitly) empowers the Court to find a violation of the Convention and to award just satisfaction. The Court is only competent to find that the primary obligation was violated, whereas not competent to find that the primary obligation must be complied with. Consequently, the doubts as to competences of the Court to order cessation of continuing violations of the Convention as being annexed to its competence to find that the Convention has been violated outweigh the arguments which speak in favour of this approach. 17.4.3 Article 32 17.4.3.1 Narrow Interpretation of Article 32 The Court’s directions to take general remedial measures may not only be considered as orders286 intended to create corresponding obligations of the Contracting States to obey them, but they may also be considered as 283 Consequently, Eschment’s statement that any reference to Article 41 was incorrect in view of the Court’s use of Article 46 § 1 as a legal basis (Eschment, Musterprozesse 106), is not to be followed, since there might be other legal foundations for the Court’s approach which were not invoked by the Court. 284 Breuer, ‘Abhilfemaßnahmen’ 261. 285 Cf. Chapter 13.3.4 (at p 80). 286 Cf. for instance the terminology used by Nifosi-Sutton, ‘Power’ 51 et seq.



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an interpretation of Article 46 § 1 in individual cases: Since Article 46 § 1 obliges the Contracting States to take the required (individual as well as general) remedial measures following a judgment finding a violation,287 the Court’s determination of those measures in a particular case may be considered as an interpretation of Article 46 § 1 or, respectively, as an application of the set of obligations inherent in the Contracting States’ undertaking to abide by judgments of the Court288 to a particular case.289 Under Article 46 § 1 the Contracting States are obliged to take individual or general remedial measures under certain circumstances, e.g. if there is a risk that similar violations will occur in the future. However, this set of obligations merely involves obligations which a Contracting State might have, i.e. if the respective conditions are met in an individual case. Which concrete remedial measures the Contracting States’ duty to abide by the Court’s judgments according to Article 46 § 1 requires in an individual case, needs to be determined; it does not derive from the wording of Article 46 § 1 if, for instance, a Contracting State is also required to take general measures following a judgment.290 Therefore, any determination of remedial measures by the Court may be regarded as a determination of obligations which follow from Article 46 § 1 under the respective circumstances. This view is supported by the Court’s phrasing in various pilot judgments which indicates that the Court intends to apply Article 46 § 1 when determining the Contracting State’s obligations following a judgment: In Broniowski the Court stated that it “wishes to consider what consequences may be drawn for the respondent State from Article 46 of the Convention.”291 Proceeding on this understanding, Article 32 may be of relevance when seeking to ascertain competences of the Court to determine the Contracting States’ remedial obligations in a judgment. According to Article 32, the jurisdiction of the Court “shall extend to all matters concerning the interpretation and application of the Convention”. The Court 287 Cf. Chapter 13.3.4 (p 76 above). 288 Cf. as to the set of obligations which may derive from (a judgment finding) a violation of the Convention Chapter 13.3.4 (p 76 above). 289 This is also indicated by Ress, ‘Urteile’ 351, who notes that the Court may not specify the Contracting States’ obligations which derive from (current) Article 46 § 1. 290 Cf. also Chapter 17.5.2.1 (p 195). 291 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 192. Cf. Also para 193: “Although it is in principle not for the Court to determine what remedial measures may be appropriate to satisfy the respondent State’s obligations under Article 46 of the Convention …”.

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held that as a result of this provision it was “endowed with full jurisdiction and may thus take cognisance of all questions of fact and of law which may arise in the course of the consideration of the case.”292 Based on this interpretation, Article 32 could be conceived of as a legal basis for the Court’s interpretation and application of Article 46 § 1 in a particular case, i.e. for its determination of (general) remedial measures following a judgment. Furthermore, it is to be assumed that any such interpretation of the Convention would be endowed with binding effect on the respective respondent State which would follow in particular from Article 32, read in conjunction with Article 46 § 1. From the Court’s jurisdiction to interpret and apply the Convention in its judgments (Article 32), considered in conjunction with the Contracting States’ undertaking to abide by the Court’s judgments (Article 46 § 1), it would follow that the Court’s interpretation and application of the Convention in a judgment was binding upon the Contracting States. This implies, with respect to the Court’s authority to interpret the Convention, that the Contracting State concerned cannot doubt the meaning and obligatory content of a Convention provision, after this meaning and content has been determined by the Court with respect to a particular case. In case of a determination of remedial measures, this concerns the meaning and content of Article 46 § 1 in the light of the concrete circumstances of the respective case. Accordingly, Articles 32 and 46 § 1 could be interpreted as comprehensively empowering the Court to determine the obligations which follow from Article 46 § 1 in the particular case under consideration, since this amounts to an interpretation and application of that provision. This understanding presupposes that the Court’s jurisdiction to interpret the Convention, as conceded to it by Article 32, is not restricted to an interpretation of the guarantees as laid down in Section 1 of the Con­ vention or in the Protocols to it, thus to an interpretation of the rights of the Convention, but that it extends to the procedural provisions in Section 2 of the Convention. The unconditional phrasing of Article 32 supports the assumption of a comprehensive scope of application which is corroborated by the Court’s judgment in De Wilde, Ooms and Versyp, where it assumed its jurisdiction to assess if the applicant had exhausted all domestic remedies, thus the Court assumed jurisdiction to interpret a provision

292 De Wilde, Ooms and Versyp v Belgium App nos 2832/66 and others (ECtHR, 18 June 1971) para 49; cf. also Spielmann, ‘Margin’ 1.



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of Section 2 of the Convention—as it is Article 46 § 1 as well.293 From this it could be followed, in the first instance, that the Court was empowered to determine the Contracting States’ remedial obligations in a judgment, since that determination amounted to an interpretation or application of the Convention. However, from a restrictive approach to Convention interpretation the Court’s competence to award just satisfaction, as laid down in Article 41, militates against this understanding. An explicit competence to award just satisfaction would be dispensable if it was to be followed from Article 32 already that the Court was empowered to comprehensively determine the Contracting States’ remedial obligations by way of an interpretation of Article 46 § 1: Measures of just satisfaction—or, generally speaking, of reparation294—are among the (individual) measures which a state must take under general international law according to the rules of responsibility for internationally wrongful acts,295 and which the Contracting States are also required to take as a result of a violation of the Convention.296 If the Court was, on the basis of Article 32, read in conjunction with Article 46 § 1, empowered to determine the remedial obligations deriving from a violation of the Convention, this power would also include the power to order individual measures of redress, i.e. just satisfaction. On the basis of Article 32, read in conjunction with Article 46 § 1, the Court would already be empowered to award just satisfaction without an additional provision—Article 41—being necessary. However, the Contracting States did decide to stipulate the Court’s competence to award just satisfaction to the injured party in the Convention, which indicates that they acted on the assumption that the Court would not be empowered to award just satisfaction without that provision. This indicates, in turn, that they did not  intend Article 32 to be applicable as regards an interpretation and application of the rules of responsibility for a violation of the Convention as ascribed to Article 46 § 1. This point of view corresponds with the common traditional perception in case-law and legal doctrine as regards explicit determinations of remedial obligations by the Court, according to  which the Court was not empowered to bindingly interpret, i.e. to

293 Cf. De Wilde, Ooms and Versyp v Belgium App nos 2832/66 and others (ECtHR, 18 June 1971) para 50. 294 Cf. Article 31 of the Draft Articles: ILC, ‘Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries’ 2001 YILC, vol. II, Part two, 91 et seq. 295 Cf. Chapter 13.2 (p 71). 296 Cf. Chapter 13.3.3 (p 75).

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determine, the Contracting States’ obligations following judgments finding a violation. As a consequence of this understanding, Article 41 would not only lack an explicit stipulation of competences of the Court to determine the Contracting States’ general remedial obligations in a judgment, but it might also be considered as ruling out competences of the Court to determine any other remedial obligations than the one provided for in Article 41, thus just satisfaction. In the following it is to be examined if an interpretation of the Convention in the light of its object and purpose might lead to another interpretation of Article 32. 17.4.3.2 Interpretation of Article 32 in the Light of the Object and Purpose of the Convention According to Article 31 of the Vienna Convention, an international treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.297 From this it follows that, beyond the ordinary meaning of its words, a treaty has to be interpreted in the light of its aims, its nature, and its end, which is particularly important in case of founding treaties of international organizations and human rights treaties.298 This rule of interpretation is seen as being interrelated with aspects of effectiveness. M. Villiger points out that if a treaty provision is interpreted in the light of its objects and purposes (together with good faith, as stipulated in Article 31 of the Vienna Convention as well), this interpretation will ensure the treaty’s effective execution.299 In this understanding, an effective treaty performance is the consequence of an interpretation of a treaty in the light of its object and purpose. In addition, effectiveness is not only regarded as a side effect of an interpretation in the light of object and purpose of a treaty, but it is also considered an own maxim of interpretation: In case a treaty provision allows more than one possible 297 Teleological interpretation. According to the Court, the Convention must be interpreted in the light of the rules set out in the Vienna Convention, thus so far as possible consistently with the other principles of international law of which it forms a part: Golder v The United Kingdom App no 4451/70 (ECtHR, 21 February 1975) para 29; Mamatkulov and Askarov v Turkey App nos 46827/99, 46951/99 (ECtHR, 4 February 2005) para 111. 298 Villiger, Vienna Convention 427 et seq; Herdegen, ‘Interpretation’ para 30; cf. also PCIJ, Chorzów (Jurisdiction) 25. Cf. also ICJ, Certain expenses 168: “But when the Organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization”. 299 Villiger, Vienna Convention 428.



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interpretation, it is argued that it is to be interpreted in a way which effectuates and promotes the treaty’s object and purpose to the greatest extent.300 However, any interpretation with reference to the object and purpose of a treaty finds its limits in the treaty text.301 Approaches to assume, with respect to a rule of effectiveness of treaty interpretation, unwritten provisions in international treaties have been rejected by the ICJ302 and in legal doctrine on public international law.303 Therefore, there is no rule according to which a treaty was to be interpreted in a way which brought about the object and purpose of the treaty in any case, regardless if such an interpretation corresponded with the text of the treaty. Instead, existing provisions which leave room for interpretation are to be understood in a way which promotes the realization of object and purpose of a treaty. By contrast, the ECJ has been less reluctant in extensively interpreting the founding treaties of the European Union. With reference to the effet utile of European Union law, it has created obligations for the Member States to the European Union which have been doubted to have an expression in the wording of the founding treaties.304 The Court also interprets the Convention in the light of its object and purpose as a whole and of the particular rights enshrined in it. Accordingly, the Court has based judgments concerning the territorial scope of the Convention,305 a narrow interpretation of exceptions to its safeguards,306 the scope of Article 41,307 and the interpretation of specific Convention rights308 on the objects and purposes of the Convention.309 The Court 300 Bernhardt, Auslegung 93 et seq; Weiß, Kompetenzlehre 369; Verdross, Simma, Völkerrecht 494. 301 Villiger, Vienna Convention 428. 302 IJC, Peace Treaties 229: “The principle of interpretation expressed in the maxim: Ut res magis valeat quam pereat, often referred to as the rule of effectiveness, cannot justify the Court in attributing to the provisions for the settlement of disputes in the Peace Treaties a meaning which, as stated above, would be contrary to their letter and spirit”. 303 Villiger, Vienna Convention 428; Bernhardt, ‘Interpretation’ 1420. 304 Schweitzer, Hummer, Obwexer, Europarecht 201; Weiß, Kompetenzlehre 370. 305 Loizidou v Turkey (Preliminary Objections) App no 15318/89 (ECtHR, 23 March 1995) para 62. 306 Pellegrin v France App no 28541/95 (ECtHR, 8 December 1999) para 64. 307 Salah v the Netherlands App no 8196/02 (ECtHR, 6 July 2006) para 68. 308 For instance with respect to Article 6 as regards the public pronouncement of judgments Pretto and Others v Italy App no 7984/77 (ECtHR, 8 December 1983) para 26, Axen v Germany App no 8273/78 (ECtHR, 8 December 1983) para 31 and Sutter v Switzerland App no 8209/78 (ECtHR, 22 February 1984) para 33. 309 Cf. also Frowein, Peukert, Menschenrechtskonvention 5 et seq. and 13; Matscher, ‘Interpretation’ 65 et seq; Grabenwarter, Pabel, Menschenrechtskonvention 35 et seq.

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deduces the object and purpose of the Convention in particular from its Preamble, “the most significant passage of which is the fifth paragraph, in which the signatory Governments declare that they are ‘resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration’”.310 The Court’s task of ensuring observance of the engagements undertaken by the Contracting States according to Article 19 is also referred to in order to establish the Convention’s object of an effective human rights protection.311 As a specific manifestation of a teleological approach to interpretation, the Court has repeated for decades that the “Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective”.312 This approach to interpretation has not only been applied with respect to the content of the rights enshrined in Section 1 of the Convention, but also as regards the procedural provisions in Section 2: In 2005 the Court decided that the Contracting States were bound to comply with interim measures313 failing which, as the Court held, the Contracting States prevented the Court from examining the applicant’s complaint and, consequently, violated Article 34.314 In this context, the Court formulated a rather extensive interpretation of the relevant provisions of the Vienna Convention, stating that “Article 31 § 1 of the Vienna Convention … provides that treaties must be interpreted in good faith in the light of their object and purpose …, and also in accordance with the principle of effectiveness.”315 Accordingly, the Court did

310 Salah v the Netherlands App no 8196/02 (ECtHR, 6 July 2006) para 68; cf. also Golder v The United Kingdom App no 4451/70 (ECtHR, 21 February 1975) para 34. 311 Grabenwarter, Pabel, Menschenrechtskonvention 35 et seq; cf. also Salah v the Netherlands App no 8196/02 (ECtHR, 6 July 2006) para 69. 312 Airey v Ireland App no 6289/73 (ECtHR, 9 October 1979) para 24; cf. also Matthews v The United Kingdom App no 24833/94 (ECtHR, 18 February 1999) para 43; Christine Goodwin v the United Kingdom App no 28957/95 (ECtHR, 11 July 2002) para 74; Scoppola v Italy (No 2) App no 10249/03 (ECtHR, 17 September 2009) para 104; cf. Karper, Reformen 167. Also in Verein gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) App no 32772/02 (ECtHR, 30 June 2009) para 84 the Court stressed the significance of the Convention’s mechanisms for reviewing compliance with the Convention and of the effective implementation of judgments. 313 As adopted under Article 39 of the Rules of Court. 314 Mamatkulov and Askarov v Turkey App nos 46827/99, 46951/99 (ECtHR, 4 February 2005) para 121 et seq. and 5th operative provision. 315 Mamatkulov and Askarov v Turkey App nos 46827/99, 46951/99 (ECtHR, 4 February 2005) para 123.



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not, at least not expressly, confine its rule of effective interpretation to a rule of doubt, i.e. to a rule which was only applicable in case a treaty provision allowed more than one possible way of interpretation. As far as can be seen, the Court has only invoked a rule of effective interpretation with respect to rights granted by the Convention, be them the substantial rights in Section 1 of the Convention,316 or be them the right to individual application according to Article 34.317 Therefore, it is questionable if this rule is also applicable to other procedural provisions of the Convention, thus to provisions which do not contain rights of individuals—like Article 32, for instance. The rules of interpretation of the Vienna Convention, as described just above, have been applied by the Court without a restriction to individual rights; from this it is to be followed that they are applicable to the Convention as such, thus also with respect to Section 2 of the Convention.318 Therefore, as far as the Vienna Convention contains rules of an interpretation of treaties in the light of their object and purpose, they are relevant for the Convention in general. In any case it is to be highlighted that a teleological interpretation with emphasis on the effective realization of the Convention’s object and purpose should be invoked reservedly. Otherwise, this approach would allow any interpretation of the Convention as long as it promoted its effective implementation. Therefore, it is to be examined if the terms of Convention provisions, understood in their context,319 may be interpreted as allowing the Court to examine the structural roots behind individual applications and to determine the Contracting States’ remedial obligations in a judgment. If a Convention provision leaves room for various interpretations, thus in case of doubt, an interpretation which furthers the effective protection of the rights enshrined in the Convention is to be preferred. With respect to the Court’s determinations of remedial obligations, Article 32 is to be examined as an empowering Convention provision. According to Article 32, the jurisdiction of the Court shall extend to all those matters concerning the interpretation and application of the Convention and the protocols thereto which are referred to it as provided 316 Cf. again for instance Scoppola v Italy (No 2) App no 10249/03 (ECtHR, 17 September 2009) para 104. 317 Cf. again Mamatkulov and Askarov v Turkey App nos 46827/99, 46951/99 (ECtHR, 4 February 2005) para 123 as regards the binding effect of interim measures. 318 Cf. Golder v The United Kingdom App no 4451/70 (ECtHR, 21 February 1975) para 29; Mamatkulov and Askarov v Turkey App nos 46827/99, 46951/99 (ECtHR, 4 February 2005) para 111. 319 Cf. Article 31 of the Vienna Convention.

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in Articles 33, 34, 46, 47, i.e. which are brought before it, among others, by way of an individual application. As was said above, the wording of this provision leaves room for interpreting it as empowering the Court to interpret and apply Articles 1 and 46 § 1 to the concrete facts of a case, i.e. to determine which concrete remedial measures the Contracting State concerned has to take in order to comply with those provisions.320 Such an understanding is corroborated by the Court’s opinion that Article 32 also conceded jurisdiction to it to interpret the Convention not only as regards the rights enshrined in it, but also with respect to the procedural provisions in Section 2.321 This understanding militates in favour of assuming a jurisdiction of the Court to interpret Article 46 § 1 as well. From this it is to be followed in the first instance that the Court is competent to interpret and apply the Contracting States’ undertaking to abide by the Court’s judgments to the particular case under consideration, and that it is competent to determine the contents of this obligation. Therefore, the wording of Article 32 (read in conjunction with Article 46) can basically be interpreted as empowering the Court to determine remedial obligations in its judgments. However, an extensive interpretation of the respective Convention provisions is only to be preferred if it is not prohibited by other Convention provisions. In that regard it is to be recalled that Article 41 could be claimed to speak against an interpretation of Article 32 as allowing the Court to determine remedial measures: An explicit competence to award just satisfaction, as conceded by Article 41, might be said to be dispensable if the Court was empowered anyway to determine the Contracting States’ remedial obligations (on the basis of Article 32, read in conjunction with Article 46 § 1), which might in turn be referred to as a demand to interpret Article 32 narrowly.322 However, Article 41 does not explicitly rule out an interpretation of Article 32 as empowering the Court to apply Article 46 § 1 in concrete cases, which might be said to suffice in order to assume such competences in the light of the Vienna Convention’s demand to interpret the Convention in the light of its object and purpose. Furthermore, as regards the intentions of the drafters of the Convention, Article 41 needs to be considered in the context of the Contracting States’ decision to refrain from empowering the Court to annul or rescind domestic legal acts:323 The Contracting States 320 Cf. Chapter 17.4.3 (p 168). 321 Cf. p 170 above. 322 Chapter 17.4.3.1 (p 168). 323 Cf. Okresek, ‘Artikel 41 EMRK’ 3 et seq; cf. also Chapter 17.4.7.2 (p 189).



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merely decided no to concede powers to the Court to directly interfere with national legal acts by annulling or rescinding them, whereas they did not, as far as can be seen from the travaux préparatoires, explicitly intend not to empower the Court to determine remedial measures.324 Therefore, the existence of Article 41 remains an argument militating against an interpretation of Article 32 as empowering the Court to determine remedial measures in its judgments. However, since other Convention provisions leave room for such an empowering interpretation of Article 32, it is to be preferred if it furthers the object and purpose of the Convention, as shall be examined instantly below. Apart from the implications of Article 41, it is referred to the Contracting States’ choice of means in the execution process and to the Committee’s powers to supervise execution of the Court’s judgments as factors militating against competences of the Court to determine remedial obligations,.325 As was said before, these principles (that is to say, the Convention provisions which stipulate them) are to be taken into consideration when ascertaining if there is a legal basis of the Court’s determinations of remedial measures.326 However, these principles require a comprehensive examination; therefore, they will be dealt with below in a separate Chapter.327 At this point it suffices to anticipate that the Contracting States’ choice of means does not exclude determinations of remedial obligations altogether, but that it only excludes determinations of particular, specific remedial obligations.328 As long as the Court merely determines, in essence, that the Convention is to be fully implemented in a given field or that a judgment is to be fully executed, these determinations do not unduly interfere with the Contracting States’ choice of means in the execution process. As it will be substantiated in a separate Chapter below as well, the Committee’s powers in the execution process do not restrict the Court’s determinations at all.329 Accordingly, when anticipating the results of an examination of the Contracting States’ discretion in the execution process and of the allocation of powers between the Court and the Committee, no Convention 324 Cf. again Chapter 17.4.7.2 (p 189) as to the preparatory works to the Convention. 325 Chapter 17.3.3 (p 154). 326 Cf. the requirement to interpret single treaty provisions in the light of the whole treaty, as stipulated in Article 31 of the Vienna Convention; cf. Villiger, Vienna Convention 427; Verdross, Simma, Völkerrecht 492. 327 Chapters 17.5 (p 193) and 17.6 (p 225). 328 Cf. the conclusion in Chapter 17.5.6 (p 224). 329 Cf. the conclusion in Chapter 17.6.3.4 (p 236).

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provision rules out a determination of remedial obligations in judgments finding a violation (based on Article 32 read in conjunction with Article 46 § 1). Therefore, the respective provisions are to be interpreted in a way which strengthens the implementation of the Convention’s objects and purposes the most, i.e. which promotes their effective realization. A key object of the Convention is the effective protection of the rights enshrined in it,330 which leads to the question if the pilot-judgment procedure furthers this object. It is to be asked if an interpretation of the cited Convention provisions in favour of competences of the Court to determine remedial obligations enhances the effective protection of human rights. Certainly, this is primarily an empirical question and therefore essentially outside the scope of this examination. Nevertheless, some considerations shall be outlined in the following. Initially, the procedural measures adopted by the Court in the pilot judgments (structural examination, identification, and determination of a systemic problem and of required remedial measures) appear not to enhance the effectiveness of the Court’s processing of the application in the pilot case or of any other particular individual application. An individual’s complaint about an ill-treatment by state organs may as well be decided on without examining the structural roots behind the individual violation, and without indicating general remedial measures designed to resolve the structural problem behind it, if any. These measures hardly contribute to a faster processing of a particular individual application before the Court. On the other hand, still focusing on the pilot-judgment procedure’s effects on single individual applications, it is to be assumed that the Court’s determinations of required general measures enhances the effective implementation of those measures—and thus enhances the respondent State’s compliance with Article 46 § 1. Since in proceedings following individual applications the respondent States may also be required to take general remedial measures,331 and since the Committee may not conclude its supervisory activity in a given case until these general measures have

330 Grabenwarter, Pabel, Menschenrechtskonvention 35 et seq; cf. also Salah v the Netherlands App no 8196/02 (ECtHR, 6 July 2006) para 69; Airey v Ireland App no 6289/73 (ECtHR, 9 October 1979) para 24; Matthews v The United Kingdom App no 24833/94 (ECtHR, 18 February 1999) para 43; Christine Goodwin v the United Kingdom App no 28957/95 (ECtHR, 11 July 2002) para 74; Scoppola v Italy (No 2) App no 10249/03 (ECtHR, 17 September 2009) para 104. 331 Cf. Chapter 13.3.4 (p 76).



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been implemented,332 actions designed to improve and facilitate compliance with an obligation to take general measures will contribute to effectively concluding proceedings following this individual application. Apart from that, generally speaking, if systemic problems are resolved on the domestic level, there will be less (repetitive) applications submitted to the Court;333 this will also reduce the duration of proceedings following individual applications, since the Court will have to deal with less cases at one time. Therefore, the relevant question is if the Court’s findings of systemic problems and its determinations of remedial obligations indeed promote the effective implementation of general remedial measures aimed at resolving systemic problems in the Contracting States’ domestic legal orders. The Committee as well as legal commentators acted on the assumption that an identification of systemic problems, or of general remedial measures to resolve them, raised compliance with the Court’s judgments.334 Assessments as to the efficacy of the pilot-judgment procedure have arrived at a reservedly positive conclusion so far.335 On the other hand, Judge Zagrebelsky notes with respect to the Court’s determinations in Hutten-Czapska that they do not add in any way to the system’s efficiency.336 It might nevertheless be assumed that an identification of a systemic problem in a judgment will enhance the pressure resting on the respondent State to resolve the problem. Accordingly, it is to be assumed that the Court’s course of action in its pilot judgments furthers the object and purpose of the Convention of providing an effective protection of the rights enshrined in the Convention. To sum up, there are Convention provisions which may be interpreted as empowering the Court to determine the Contracting States’ obligations aiming at resolving underlying structural problems. Acting on the assumption that this interpretation will promote an effective pursuit of the Convention’s aim and purposes because it enhances the Contracting 332 Cf. Rule 6 § 2 of the Committee’s ‘Rules for the Supervision of the Execution of Judgments’. 333 As it is highlighted by the Committee in its ‘Recommendation on the improvement of domestic remedies’. 334 Committee of Ministers, ‘Resolution on judgments revealing an underlying systemic problem’; cf. Fyrnys, ‘Pilot Judgments’ 1252; cf. Okresek, ‘Maßnahmen’ 641 et seq., who states that an identification of suitable remedial measures by the Court enables the respondent State to swiftly take the required actions. 335 Leach, Responding 103, 131, 168. 336 Partly Dissenting Opinion to Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006).

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States’ compliance with judgments raising general problems of Convention implementation, it is to be preferred—subject to an assessment of the Contracting States’ discretion in the execution process and the allocation of powers between the Court and the Committee, which shall be conducted below.337 17.4.4 The Committee’s Resolution and Recommendation In a Resolution of the Committee on judgments revealing an underlying systemic problem the Committee invited the Court to identify what it considers to be an underlying systemic problem and the source of this problem in its judgments finding a violation of the Convention, in particular when it is likely to give rise to numerous applications, so as to assist states in finding the appropriate solution and the Committee in supervising the execution of judgments.338 This Resolution as well as the Committee’s Recommendation on the improvement of domestic remedies339 has been invoked by the Court as corroborating its course of action in the pilotjudgment procedures.340 However, the Court did not invoke this Resolution and Recommendation as a specific legal basis for its course of action.341 Furthermore, Resolution Res(2004)3 merely invites the Court to identify what it considers to be an underlying systemic problem and the source of this problem, whereas it does not invite the Court to determine remedial obligations of the Contracting States in order to resolve the systemic problem.342 As a rule, Resolutions and Recommendations of the Committee may not be used as a legal basis for competences of the Court in the individual complaints procedure. The Committee is a political organ of the Council of Europe which has no treaty-making power as regards the Convention. Powers of the Court may only derive from the Convention as being granted therein by the Contracting States which have the exclusive power of treaty amendment.343 Therefore, Resolution Res(2004)3 may not replace 337 Chapters 17.5 (p 193) and 17.6 (p 225). 338 Committee of Ministers, ‘Resolution on judgments revealing an underlying systemic problem’. 339 Committee of Ministers, ‘Recommendation on the improvement of domestic remedies’. 340 Eg. Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 190; Schmahl, ‘Piloturteile’ 377. 341 Likewise Eschment, Musterprozesse 107. 342 Eschment, Musterprozesse 104; Gattini, ‘Claims’ 279 et seq. 343 Cf. Weiß, Kompetenzlehre 358.



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competences of the Court as conceded by Convention provisions as a matter of principle.344 17.4.5 Rule 61 of the Rules of Court Rule 61 (which is titled “Pilot-judgment procedure”) stipulates in its § 3 that the Court shall identify, in its pilot judgments, both the nature of the structural or systemic problem as well as the type of remedial measures which the Contracting State concerned is required to take at the domestic level by virtue of the operative provisions of the judgment. § 4 reads that in the operative provisions of the pilot judgment the Court may direct that these remedial measures shall be adopted within a specified time, bearing in mind the nature of the measures required and the speed with which the problem which it has identified can be remedied at the domestic level. Again it is to be said that competences of the Court may only be established by Convention provisions. True, the Court is empowered by Article 25 to adopt the Rules of Court; however, it is to be assumed that the Court must not go beyond what is stipulated by the Convention in terms of the Court’s powers and the Contracting States’ obligations.345 Therefore, the Court may not establish powers which have no legal basis in the Convention by way of its Rules of Court. When ascertaining if there is a legal basis in the Convention for determining remedial measures by the Court, Rule 61 is merely to be seen as expressing the Court’s opinion of the existence of respective powers under the Convention. 17.4.6 Article 19 and Implied Powers It is also to be examined if the Court’s course of action in the pilot judgments may be based on implied powers with reference to the Court’s tasks and functions under the Convention. In legal doctrine focusing on the pilot-judgment procedure Judge Ziemele refers to “inherent powers of an international court” which the development of the pilot-judgment procedure was linked to.346 J. Eschment criticizes this point of view, invoking that the Court solely referred to an extensive interpretation of Article 46 § 1 in order to put the pilot-judgment procedure on a legal basis347—a 344 Likewise Schmahl, ‘Piloturteile’ 377; Judge Zupančič, Concurring Opinion to Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004). 345 Cf. in general Weiß, Kompetenzlehre 358. 346 Judge Ziemele, Concurring Opinion to Hutten-Czapska v Poland (friendly settlement) App no 35014/97 (ECtHR, 28 April 2008). 347 Eschment, Musterprozesse 106.

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point of view which does not, however, rule out that there are other possible legal foundations of the pilot-judgment procedure than Article 46 § 1, one of them being the doctrine of implied powers. This concept is to be examined in the following. According to the doctrine of implied powers, an international organization has those competences and powers which are necessary for the performance of its duties, tasks and functions—even if those powers are not explicitly mentioned in the founding treaty of the organization. This has repeatedly been adjudicated by the PCIJ348 and the ICJ349 as well as by the ECJ350 and is mostly acknowledged in legal doctrine with respect to public international law351 as well as to European Union law.352 As regards the Convention, there are also critical comments; F. Matscher notes, for instance, that it was improper to use the theory of implied powers to extend the well-defined duties and powers of an institution set up by an international agreement, and to extend thereby at the same time, in the institutional and organizational field, the obligations of the Contracting States beyond what has been expressly agreed.353 Implied powers are based on provisions in international treaties which stipulate an international organization’s tasks and functions.354 On that basis it is to be asked if the international organization is only capable of effectively performing these tasks and functions if respective (implied) powers are assumed: According to the PCIJ, an international organization has the powers to exercise its functions “to their full extent”.355 This implies

348 PCIJ, Commission of the Danube 64. 349 ICJ, Reparation for Injuries 182: “Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties”; ICJ, Certain expenses 168. 350 ECJ, Fédération Charbonnière; ECJ, Commission v Council; ECJ, Germany v Commission. 351 Gordon, ‘Court’ 816 et seq; Bernhardt, Auslegung 102 et seq; Klein, Schmahl, ‘Organisationen’ 351 et seq; Schreuer, ‘Organisationen’ 180 et seq; Weiß, Kompetenzlehre 362; Verdross, Simma, Völkerrecht 494. Verdross, Simma (Völkerrecht 495 et seq.) point out that the implied powers-doctrine had not been included in the Vienna Convention since it had no general validity. According to the authors, this approach to treaty interpretation was only applicable to a treaty if the states parties to it had consented to its application, or else if a treaty may only be interpreted reasonably with reference to this doctrine. Cf. also the critical references in Weiß, Kompetenzlehre 369. 352 Khan, ‘AEUV Artikel 352’ 973; Kotzur, ‘AEUV Artikel 7’ 197. 353 Matscher, ‘Interpretation’ 81. 354 Klein, Schmahl, ‘Organisationen’ 352; cf. also ICJ, Reparation for Injuries 182. 355 PCIJ, Commission of the Danube 64.



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that the concept of implied powers is closely linked to questions of effectiveness or, respectively, threats to the effective performance of tasks without the assumption of implied powers.356 However, implied powers are not regarded as new competences of an international organization but as competences which are—although not explicitly stipulated—inherent in a (founding) treaty.357 This also presupposes that implied powers may only be assumed if they are not in conflict with any other provision of the respective treaty.358 Therefore, it is to be asked if the Court’s course of action in the pilotjudgment procedure is indispensable for an (effective) performance of its tasks and functions under the Convention. This question is to be asked with respect to the Court’s examinations of systemic problems in proceedings following individual applications as well as to the Court’s determinations of specific remedial measures. Implied powers to take particular actions may only be assumed if those powers are essential for the performance of the duties of an (organ of an) international organisation. When applying this concept to the Convention and the Court,359 it is to be asked what the duties, tasks and functions of the Court amount to. The object and purpose of the Convention have been described, based on the preamble, as the maintenance and further realization of human rights360 and as the effective protection of the rights enshrined in the Convention.361 The Court’s task is stipulated in Article 19, according to which the Court has been established in order to “ensure the observance 356 Cf. ICJ, Reparation for Injuries 182: “powers which … are conferred upon it by necessary implication as being essential to the performance of its duties”. 357 Weiß, Kompetenzlehre 368; Schreuer, ‘Organisationen’ 180 et seq. 358 PCIJ, Commission of the Danube 64: “… it has powers to exercise these functions … in so far as the Statute does not impose restrictions upon it”. 359 Strictly speaking, the Court is neither considered an international organisation nor an organ of an international organisation (Ress, ‘Gerichtshof’ 41 et seq; Kussbach, ‘Artikel 19 EMRK’ 9 et seq.). 360 Matscher, ‘Interpretation’ 66; Salah v the Netherlands App no 8196/02 (ECtHR, 6 July 2006) para 69. 361 Grabenwarter, Pabel, Menschenrechtskonvention 35 et seq; cf. also Mamatkulov and Askarov v Turkey App nos 46827/99, 46951/99 (ECtHR, 4 February 2005) para 123, where the Court states that the Convention is to be interpreted “in accordance with the principle of effectiveness”; cf. also as a more recent judgment Rantsev v Cyprus and Russia App no 25965/04 (ECtHR, 7 January 2010) para 274, where the Court stated, with respect to the Vienna Convention’s rule to interpret the provisions of treaties in their context (cf. Article 31 of the Vienna Convention), that it had to “have regard to the fact that the context of the [relevant provision of the Convention] is a treaty for the effective protection of individual human rights.

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of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto”.362 It is to be examined, if the Court’s pilot-judgment procedure is essential for an effective performance of the Court’s duty of ensuring an effective observance of the Contracting States’ obligations. In that regard, it is to be stated that the pilot-judgment procedure is closely related with strengthening the Contracting States’ observance of their obligations under the Convention. According to Article 1, read in conjunction with the rights enshrined in Section I of the Convention and the Protocols to it, those engagements of the Contracting States comprise the duty to fully respect and implement the rights of the Convention— more specifically, to safeguard those rights on the national level.363 As K. Reid points out, “[i]t is … first and foremost the role of the State to protect human rights”.364 This obligation has been described as an aspect of the principle of subsidiarity which, accordingly, does not only mean that the Contracting States’ enjoy a certain discretion when implementing the Convention, and that they are entitled to get a chance to remedy violations of the Convention on the national level, but that they are also obliged to implement the Convention and to domestically safeguard the rights guaranteed by it.365 Furthermore, the Contracting States’ engagements, as referred to by Article 19, comprise the obligation to abide by judgments of the Court according to Article 46 § 1.366 Therefore, it is the Court’s task to 362 Cf. Loizidou v Turkey (Preliminary Objections) App no 15318/89 (ECtHR, 23 March 1995) para 93; Kussbach, ‘Artikel 19 EMRK’ 11 et seq. Cf. in this context Article 19 TEU, according to which the ECJ shall “ensure that in the interpretation and application of the Treaties the law is observed”. On the basis of this provision, the ECJ is entrusted with a comprehensive legal protection in the European Union and has engaged in an extensive development of European Union law (Borchardt, ‘Artikel 19 EUV’). Article 19 TEU may be said to have its counterparts in Articles 19 and 32 of the Convention, according to which the Court shall ensure the observance of the engagements undertaken by the Contracting States in the Convention and is entrusted with jurisdiction extending to all matters concerning the interpretation and application of the Convention which are referred to it on the basis of the Convention (cf. Karper, Reformen 168). 363 Siess-Scherz, ‘Subsidiaritätsprinzip’ 88 et seq; Bernhardt, ‘Gestaltungsspielraum’ 77; Council of Europe, ‘Explanatory Report to Protocol No 14’ para 12, 15. 364 Reid, Convention 44. 365 Nowak, Introduction 63 et seq; Reid, Convention 44; Mahoney, ‘Reparation’ 271. 366 It follows from Article 46 § 1 “inter alia, that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures 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.” (Scozzari and Giunta v Italy App nos 39221/98, 41963/98 [ECtHR, 13 July 2000] para 249; cf. in general Chapter 13.3, p 72 above).



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ensure that the Contracting States implement the Convention on the national level and to provide safeguards against its violation. The pilot-judgment procedure aims at strengthening the Contracting States’ observance of these obligations. The existence of a systemic problem or of a practice incompatible with the Convention constitutes (or points to) a breach of the Contracting States’ engagements—in terms of a failure to fully implement the Convention and to properly execute judgments finding a violation.367 The Court’s assessment of the nature and roots of a structural problem as well as its indication of remedial measures assist the Contracting States in resolving systemic problems, since it points to the necessity to adopt general measures and gives indications which measures are required. The Court’s determinations also exert pressure on the Contracting States to resolve systemic problems, since it highlights their existence. This aims at raising Convention compliance and thus enhances the observance of the engagements undertaken by the Contracting States as stipulated in Article 19. The close relationship between the principle of subsidiarity and the Court’s pilot-judgment approach has been highlighted by the Court itself when it stated that one of the aims of the pilot-judgment procedure was “to induce the respondent State to resolve large numbers of individual cases arising from the same structural problem at the domestic level, thus implementing the principle of subsidiarity which underpins the Convention system”.368 As the Court has held repeatedly, “the Court’s task, as defined by Article 19, … is not necessarily best achieved by repeating the same findings in large series of cases”.369 Accordingly, by way of assisting and inducing the Contracting States to fully implement the Convention, in case deficiencies in its implementation have come to light, the Court seeks to bring about observance of the engagements undertaken by the respective Contracting State in the field under consideration—and therefore aims at effectively discharging its tasks under Article 19. It is furthermore to be assumed that the pilot-judgment procedure does not only aim at enhancing an effective performance of the Court’s duties, 367 Cf. Chapters 12.3 (p 67) and 13.4 (p 83). 368 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 127; Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) para 51; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 82. 369 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 127; Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) para 51; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 82; cf. also E.G. v Poland App no 50425/99 (ECtHR, 23 September 2008) para 27.

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but that it indeed improves the performance of its tasks, since it will raise the Contracting States’ efforts to resolve systemic problems.370 However, according to international case-law and legal doctrine regarding implied powers of international organizations, implied powers may only be assumed in case they do not merely contribute to an effective execution of the organization’s functions, but if they are essential to the performance of an organ’s duties;371 they must be indispensable to exercise those functions to their full extent.372 In general, implied powers may only be assumed restrictively.373 When asking if the Court’s course of action in its pilot judgments is indispensable for an effective performance of its tasks, the notorious failure of the Contracting States to resolve systemic problems is to be called to mind. This failure is partly ascribed to a reluctance of the Contracting States concerned to resolve systemic problems,374 partly to a lack of clearness which general measures are required under the Convention if a systemic problem exists.375 This failure has taken on a dramatic scale, as the high numbers of repetitive cases—i.e. cases which stem from unresolved systemic problems—demonstrate.376 Considering the Court’s traditional focus exclusively on the applicant’s ill-treatment (while leaving aside any attention on systemic problems behind that ill-treatment) on the one hand, and the large-scale failure of the Contracting States to resolve systemic problems on the other hand, one could hardly claim that, before the first pilot judgment was delivered, the Court was indeed fulfilling its task of ensuring the observance of the Contracting States’ obligations. Rather, the performance of the Court’s duty of effectively ensuring the Contracting 370 Cf. Chapter 17.4.3.2 (p 172). 371 ICJ, Reparation for Injuries 182. 372 Cf. PCIJ, Commission of the Danube 64; see also ECJ, Fédération Charbonnière 299: “… presupposes the rules without which that treaty or law would have no meaning or could not be reasonably and usefully applied”; ICJ, Awards of compensation 57: “the Court finds that the power to establish a tribunal … was essential to ensure the efficient working of the Secretariat, and to give effect to the paramount consideration of securing the highest standards of efficiency, competence and integrity. Capacity to do this arises by necessary intendment out of the Charter”. 373 Weiß, Kompetenzlehre 368 with further reference. 374 Cf. for instance Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 110. 375 Cf. Breuer, ‘Individualbeschwerde’ 123. 376 In 2003 some 60 % of all judgments of the Court concerned repetitive cases (Council of Europe, ‘Explanatory Report to Protocol No 14’ para 7. Cf. also Keller, Bertschi, ‘Erfolgspotential’ 207; Ohms, ‘Gerichtshof’ 20; Breuer, ‘Urteilsfolgen’ 445). According to the Court, the majority of decisions published in 2011 in its case-law database concerned socalled “repetitive” cases (European Court of Human Rights, ‘Annual Report 2011’ 87).



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States’ observance of their obligations was seriously jeopardised. It follows that measures designed to enhance a comprehensive elimination of systemic problems by the Contracting States appear to be essential for a performance of the Court’s tasks and duties. With this conclusion, a further condition for the assumption of implied powers is present. However, it is to be assumed that, with reference to implied powers, not any competence of the Court may be construed, as long as it enhanced Convention compliance by the Contracting States. Instead, only ancillary powers may be assumed which fit into the Strasbourg system of human rights protection as it is determined by the Convention. This approach derives, in principle, from the PCIJ’s judgment in the case of Commission of the Danube, according to which an international organization has powers to exercise its functions only in so far as the statute of the organization does not impose restrictions upon it.377 The PCIJ’s judgment may be understood as not only referring to explicit provisions which would be in conflict with an assumption of specific implied powers but also to restrictions which derive from the overall structure of a treaty. Acting on this presumption it is to be highlighted that the Court is not absolutely empowered by the Convention to “ensure the observance” (cf. Article 19) of the obligations arising from the Convention; in other words, the Court is not empowered to resort to any means it deems necessary or appropriate to ensure observance—as it would appear to be the case if the wording of Article 19 was considered taken for itself. Rather, the Court has to confine its supervisory actions to an exercise of its competences as stipulated in Article 32 et seq. in order to ensure observance.378 In other words, the Court’s task under Article 19 of ensuring observance by the Contracting States is to be performed specifically by way of deciding on allegations of breaches of the Convention which are brought before the Court by way of an individual or an inter-state complaint.379 Consequently, also implied powers may only be assumed in respect of procedural measures which are conducted in the framework of the individual or the inter-state complaints procedure. 377 Cf. PCIJ, Commission of the Danube 64. 378 Cf. Salah v the Netherlands App no 8196/02 (ECtHR, 6 July 2006) para 69 and Chapter 16.3.2 (p 117). 379 The Court’s competences to issue advisory opinions (Article 47) as well as its competences in the execution process (Article 46 § 3 and 4) are (so far) of little practical relevance (cf. Frowein, Peukert, Menschenrechtskonvention 612 with respect to Article 47). Furthermore, the Court has not referred to those competences in the pilot-judgment procedures.

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This condition is met in the case of the pilot-judgment procedure: All pilot judgments were delivered in proceedings following an individual complaint of individuals who had alleged that they had been treated contrary to the Convention. The pilot-judgment procedure is essentially associated with the individual complaints procedure, since it is the only realistic option for the Court to address widespread human rights problems—in contrast to the inter-state complaints procedure which is of minor practical relevance due to the small number of applications being lodged.380 Apart from that, the question if Convention provisions are in conflict with assumed implied powers of the Court may only be comprehensively ascertained after an examination of those Convention principles which have repeatedly been invoked as speaking against competences of the Court to determine the Contracting States’ remedial obligations; these principles, which shall be examined below, are the Contracting States’ discretion when executing a judgment and the allocation of powers between the Court and the Committee.381 In any case, there is no Convention provision which explicitly prohibits the Court’s examination of a systemic problem in proceedings following an individual application and its determination of remedial measures. However, implied powers should be invoked reservedly, since they do not have an express basis in the Convention and could be used to unduly expand the Court’s competences.382 To sum up, since the effectiveness of the Strasbourg system is seriously endangered by unresolved structural problems or practices incompatible with the Convention, (implied) powers to examine the structural roots of an individual application in the respondent State’s legal order, to determine remedial measures to resolve the deficiencies found, and to issue respective findings in the operative part of a judgment are to be assumed. However, this conclusion is subject to the assumption that the pilotjudgment procedure indeed enhances an effective resolution of those problems—a question which has been dealt already and has reservedly been answered in the affirmative.383 Furthermore, it is still to be examined if the Contracting States’ choice of means in the execution process and the 380 Van Dijk and others, Theory and Practice 50; Meyer-Ladewig, Menschenrechts­ konvention 318; Frowein, Peukert, Menschenrechtskonvention 458 et seq. 381 Cf. Chapters 17.5 (p 193) and 17.6 (p 225). 382 Weiß, Kompetenzlehre 368; cf. also Matscher, ‘Interpretation’ 81, who argues against the assumption of implied powers altogether. 383 Cf. Chapter 17.4.3.2 (p 172).



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Committee’s power to supervise the execution of judgments is in contradiction with the Court’s approach of determining obligations to take (general) remedial measures.384 17.4.7 Travaux Préparatoires 17.4.7.1 Relevance of the Travaux Préparatoires in General The rules of interpretation of international treaties as stipulated in the Vienna Convention on the Laws of Treaties also apply to the Convention— at least Articles 31 to 33 of the Vienna Convention.385 According to Article 31 of the Vienna Convention, an international treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. The travaux préparatoires (“preparatory works”) are referred to only as a supplementary means of interpretation by Article 32 of the Vienna Convention. According to this Article 32, recourse may be had to the travaux préparatoires in order to confirm the meaning resulting from the application of Article 31 of the Vienna Convention or to determine the meaning when the interpretation according to Article 31 of the Vienna Convention either leaves the meaning ambiguous, or obscure, or leads to a result which is manifestly absurd or unreasonable. Keeping this specific relevance of the travaux préparatoires in mind, they shall be taken into consideration in the following as regards the question if the Convention may be interpreted as empowering the Court to prescribe general remedial measures in its judgments. 17.4.7.2 The Travaux Préparatoires and the Court’s Determinations of Remedial Measures When the Convention was drafted, the involved bodies also discussed the question if the Court’s competences when delivering judgments should be restricted to the question whether or not the Convention was violated— or if the Court should be empowered to go beyond the finding of a violation (if any). These discussions concerned the question if the Court should be empowered to annul, suspend, or amend domestic legal acts if they

384 Chapters 17.5 (p 193) and 17.6 (p 225). 385 Golder v The United Kingdom App no 4451/70 (ECtHR, 21 February 1975) para 29; Mamatkulov and Askarov v Turkey App nos 46827/99, 46951/99 (ECtHR, 4 February 2005) para 111; Cremer, ‘Konventionsinterpretation’ 163; Matscher, ‘Interpretation’ 65.

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turned out to be incompatible with the Convention. Such powers of the Court were envisaged in early drafts, for instance in the Report of the Committee on Legal and Administrative Questions of 5th September 1949 presented by P.-H. Teitgen.386 According to Article 24 of the proposed text, [t]he jurisdiction of the Court shall extend to all violations of the obligations defined by the Convention, whether they result from legislative, executive or judicial acts. Nevertheless, where objection is taken to a judicial decision, that decision cannot be impugned unless it was given in disregard of the fundamental rights defined in Article 2 by reference to Articles 9, 10 and 11 of the United Nations Declaration.387

According to P.-H. Teitgen, this (draft) provision empowered the Court to “annul all legislative or statutory measures contrary to the Convention …. If a law or a degree were found to be suppressing or restraining a guaranteed freedom in a given country, the European Court could annul the said law or degree.”388 However, the text of this provision was amended and respective powers of the Court were excluded in later versions389 and in the final text of Article 50 (now Article 41).390 Apart from debates whether or not to empower the Court to amend or repeal domestic legal acts (which ended in a narrow design of the Court’s competences) it appears not to have been decided, however, if the Court should be competent to prescribe particular remedial measures. Though, only the latter question—if the Court is empowered to prescribe remedial measures—is relevant in the present context, since the Court has not intended to amend or repeal domestic legislation by way of its pilot judgments. The Court has merely ordered Contracting States to bring domestic legal structures in line with Convention standards, whereas it did not claim to alter domestic legal acts with its judgments as such.

386 Cf. as to the various stages in the process of drafting the Convention Grote, ‘Entstehungsgeschichte’ 22 et seq. 387 Collected Edition Vol. I, 234. 388 Statement at the 9th Sitting of the Consultative Assembly on 16th August 1950 (Collected Edition Vol. V, 298 et seq.). 389 For the first time (and thereupon) in the Preliminary draft convention of the Committee of Experts (Collected Edition Vol. III, 246). 390 Cf. the final text of the Convention as signed at Rome on 4th November 1950 (Collected Edition Vol. VII, 70): “If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party, is completely or partially in conflict with the obligations arising from the present convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party”.



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As regards this question, in the light of the travaux préparatoires, it does not derive from the drafting history of the Convention that the Court should not be empowered to prescribe remedial measures, since these powers appear not to have been rejected formally; it only derives from the travaux préparatoires that the Court should not be competent to rescind domestic legal acts. Accordingly, it may not be deduced from the drafting history of the Convention that the Court’s competences when issuing judgments were limited to the question if the Convention was violated and to the award of just satisfaction (if necessary). The travaux préparatoires do not determine that the Court was not empowered to prescribe remedial measures, i.e. that the Court’s judgments had to be “declaratory” as meaning that the Court was restricted to deciding if the applicant’s rights under the Convention were indeed violated.391 True, in its pilot judgment in the case of Greens and M.T. the Court ordered the respondent State to amend domestic legislation.392 In the light of the clear decision of the Convention’s drafter not to empower the Court to repeal domestic legislation as just elaborated on above, it could be argued that the Court’s order in Greens and M.T. amounted, in essence, to an interference with domestic legislation, as it was rejected by the drafters of the Convention though: Acting on the assumption that the Court’s orders were binding, the respondent State in Greens and M.T. would be obliged to amend the relevant provisions of domestic legislation. In consequence, it could be said that there was no substantial difference between the Court ordering domestic legislation to be repealed or amended, and the Court repealing domestic legislation itself—which would lie beyond its powers. However, this objection is to be discarded eventually: As regards state sovereignty, judgments of an international Court which themselves repeal or amend domestic legislation are to be seen as a considerably more intense intrusion in the sovereignty of a state than judgments which merely order domestic legislation to be amended in the future. If a 391 Cf. as to the meaning of the declaratory character of the Court’s judgments Chapter 17.3.3 (p 154). 392 Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) 6th operative provision: “the respondent State must: (a) bring forward, within six months of the date upon which the present judgment becomes final, legislative proposals intended to amend the 1983 Act and, if appropriate, the 2002 Act in a manner which is Convention-compliant; and (b) enact the required legislation within any such period as may be determined by the Committee of Ministers”. The question whether the Court has ever claimed to directly interfere with domestic legal acts in its pilot judgments has also been discussed in Chapter 17.3.3 (at p 156).

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Contracting State is merely ordered to amend its legislation, it may take all steps which are required by its domestic (constitutional) legal order without direct interference by external organs. Also, the respondent State has a certain time available in order to initiate the required amendments while the respective domestic legislation remains in force—which would not be the case if the Court amended or annulled the relevant provisions itself. Thus, there is a manifest difference between powers of the Court to annul or amend domestic legislation by its judgment and powers to prescribe domestic legislation to be amended in the future. In the light of the foregoing, it does not derive from the drafting history of the Convention that the Court was barred from prescribing remedial measures in its judgments; in other words, that its judgments were strictly “declaratory” as meaning that the Court was restricted to declare if the Convention was violated or not (and to award just satisfaction if necessary). However, it neither follows unambiguously from the travaux préparatoires that the signatories to the Convention intended to empower the Court to prescribe general remedial measures. Considering this, it is to be recalled that, according to Article 32 of the Vienna Convention, the primary purpose of the travaux préparatoires in terms of treaty interpretation is to confirm the meaning of a treaty resulting from an interpretation in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Since the travaux préparatoires to the Convention do not support the assumption of competences of the Court to prescribe remedial measures—albeit they do not militate against it either—, they may not be invoked in order to corroborate the interpretation of the Convention of the previous Chapters, the outcome of which was that the Court was empowered to prescribe remedial measures, at least when widespread human rights problems are present. 17.4.8 Interim Conclusion In the light of the foregoing, it is to be concluded that, from a restrictive approach to Convention interpretation, there is no explicit legal basis for the Court’s course of action of determining remedial measures to be taken by a Contracting State following a judgment finding a violation: Article 46 § 1 merely stipulates obligations of the Contracting States instead of powers of the Court; the existence of Article 41 militates against the assumption that the Court may determine remedial obligations with reference to Article 32, read in conjunction with Article 46 § 1. Besides, neither the



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Rules of Court nor Resolutions or Recommendations of the Committee are capable of establishing competences of the Court which would not already exist due to Convention provisions. However, from an interpretation which focuses on the object and purpose of the Convention Article 32, read in conjunction with Article 46 § 1, can be interpreted as empowering the Court to determine the remedial obligations following from Article 46 § 1 and from Article 1 in cases of deficiencies in the implementation of the Convention which affect numerous people. Similarly, focusing on the Court’s tasks and functions according to Article 19, implied powers of the Court to identify the required general remedial measures can be assumed if otherwise the functioning of the Court would be endangered due to a large number of repetitive applications. If follows that there are Convention provisions which can be interpreted as empowering the Court to determine the Contracting States’ obligations to take general remedial measures in cases of widespread human rights problems resulting from deficiencies in the implementation of the Convention in a Contracting State. However, the question if powers of the Court to determine remedial measures can be assumed as a result of these Convention provisions also depends on the Contracting States’ choice of means in the execution process as well as the Committee’s power to supervise the execution of judgments. Both concepts have been invoked by the Court and in legal literature as restricting competences of the Court to determine remedial obligations. If these objections are accurate shall be examined in the following—as regards the Contracting States’ choice of means (Chapter 17.5) and as regards the Committee’s powers in Chapter 17.6. 17.5 The Contracting States’ Domain in the Execution Process 17.5.1 Introduction As was stated above, an examination of the Court’s competence to determine the Contracting States’ remedial obligations in its judgments has to focus on two aspects: Initially, it is to be asked if Convention provisions basically empower the Court to include such determinations in its judgments. Thereupon, if it has been established that empowering provisions basically exist, it is to be examined if other Convention provisions or principles are in contradiction with these competences. As regards the former aspect, it has been concluded that several Convention provisions may be

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interpreted as empowering the Court to determine the Contracting States’ obligations to take general remedial measures in case of widespread human rights problems which endanger the effective functioning of the Strasbourg system.393 Besides a separation of powers between the Court and the Committee,394 a separation of powers between the Contracting States and the Convention organs in the process of executing judgments of the Court has also repeatedly been invoked as being in contradiction to the Court’s course of action in the pilot judgments. This concerns primarily the Court’s explicit determinations of specific remedial obligations of the Contracting States in the operative part of its judgments. In that regard, the Court has repeatedly stated in pilot judgments that, subject to monitoring by the Committee, the respondent State remained free to choose the means by which it discharged its legal obligation under Article 46, provided that such means were compatible with the conclusions set out in the Court’s judgments. In the operative part of the same judgments the Court prescribed remedial measures to be taken by the respondent State395—an approach which the Court did apparently not consider to be contrary to its statement as to the Contracting States’ freedom when executing its judgments. Legal commentators have criticized the Court’s approach of determining the Contracting States’ remedial obligations in its pilot judgments, claiming that it interfered with the freedom of decision or the margin of appreciation of the Contracting States when executing a judgment. W. Sadurski notes with respect to Broniowski that “no practical use was made of the margin of appreciation in pilot judgments, and in core parts of its reasoning the Court sternly rebutted the Government’s reliance on the margin of appreciation. As a result, there is not a great ‘margin’ that a State … is left with in light of the operative rulings”.396 M. Breuer is of the opinion that the Court could only prescribe remedial measures in case there was only one measure available in order to remedy the violation found; in other words, if the respondent State’s discretion was in fact reduced to zero.397 R. Degener and P. Mahoney state that only in very rare 393 Cf. Chapter 17.4 (p 162, Interim Conclusion at p 188). 394 Cf. Chapter 17.6 (p 225). 395 For instance Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 192 (with reference to Scozzari and Giunta v Italy App nos 39221/98, 41963/98 [ECtHR, 13 July 2000]); Finger v Bulgaria App no 37346/05 (ECtHR, 10 May 2011) para 129. 396 Sadurski, ‘Partnering’ 430. 397 Breuer, ‘Urteilsfolgen’ 449; Breuer, ‘Abhilfemaßnahmen’ 263; Verein gegen Tierfab­ riken Schweiz (VgT) v Switzerland (No 2) App no 32772/02 (ECtHR, 30 June 2009) para 88.



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cases the necessary remedial action would be so evident—and the margin of choice available to the State so limited—that the Court could venture guidance amounting to detailed instructions.398 Criticism was also expressed from the sphere of the Contracting States: In Sejdovic the respondent government stated that the practice pursued by the Court ran the risk of nullifying the principle that the Contracting States were free to choose the means of executing judgments.399 Several aspects are to be considered as regards the question if the Court’s determinations of remedial obligations are in accordance or in conflict with an exclusive domain of the Contracting States in the execution process. First, it is to be examined if such a domain exists in principle and where it has its origins (Chapter 17.5.2). Thereupon, the relation between the Contracting States’ discretion and powers of the Court it is to be analysed (Chapter 17.5.3). Next, when examining if the Court may determine remedial obligations, it is to be ascertained to which extent judgments of the Court determine the Contracting States’ remedial obligations as a rule, thus, even if judgments do not contain explicit orders at all (Chapter 17.5.4). If it is to be assumed that judgments of the Court determine the Contracting States’ remedial obligations also without explicit orders, it is to be asked if explicit orders, if they are part of a judgment, add any substantial obligatory content at all (Chapter 17.5.5). In each Chapter, the results of examination shall be applied to the pilotjudgment procedures, and it shall be ascertained if the Court’s explicit determinations in the operative part of the pilot judgments are in conformity with the Contracting States’ scope of discretion. 17.5.2 Exclusive Domains of the Contracting States? 17.5.2.1 Article 46 § 1 According to established case-law and legal doctrine, the Court’s judgments left the choice of the means to be used in their domestic legal system to give effect to their obligation under Article 46 to the Contracting States.400 The Contracting States had a margin of discretion how to comply with the obligations deriving from a judgment.401 It had been argued 398 Degener, Mahoney, ‘Test case’ 193. 399 Sejdovic v Italy App no 56581/00 (ECtHR, 1 March 2006) para 115; Lambert Abdelgawad, ‘Execution’ 52. 400 Eg. Belilos v Switzerland App no 10328/83 (ECtHR, 29 April 1988) para 78; Okresek, ‘Artikel 46 EMRK’ 5; Grabenwarter, Pabel, Menschenrechtskonvention 103. 401 Meyer-Ladewig, Menschenrechtskonvention 396.

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for a considerable time before the first pilot judgment was delivered that, due to this choice of means, the Court was not empowered to prescribe remedial measures in its judgments.402 The Contracting States’ obligations after a judgment are stipulated in Article 46 § 1, which shall be the starting point of an examination of the Contracting States’ scope of discretion in the execution process, if any, and of the question, if the traditional concept of this discretion, as just cited, is to be followed. Prima facie, Article 46 § 1, which stipulates the Contracting States’ obligation to “abide by the final judgment of the Court” to which they are parties, could be interpreted as excluding any domain of the Contracting States in the process of executing a judgment: Considering the general wording of the provision, the Contracting States rather appear to have bound themselves to abide by any judgment of the Court, irrespective of its content.403 Accordingly, from the phrasing of Article 46 § 1 it could be followed that the Contracting States had also to abide by a judgment in case it comprehensively determined their obligations deriving from it in detail, thus, if it did not leave any room for a choice of means in the execution process. Therefore, it might be said that Article 46 § 1 does not necessarily concede a discretionary domain in the execution process to the Contracting States. However, Article 46 § 1 could be interpreted as conceding discretion to the Contracting States if it was linked with the concept of the Court’s judgments being essentially declaratory. According to one possible interpretation of this concept, the Court’s competences in the individual complaints procedure are limited to deciding if the applicant’s allegations of an illtreatment contrary to the Convention are true, i.e. if there was a violation of the Convention, but its competences do not extend to prescribing remedial measures.404 Acting on this assumption, it has been argued that

402 Pauwels v Belgium App no 10208/82 (ECtHR, 26 May 1988) para 41; Demicoli v Malta App no 13057/87 (ECtHR, 27 August 1991) para 45; Akdivar and Others v Turkey (Article 50) App no 21893/93 (ECtHR, 1 April 1998) para 47; Belilos v Switzerland App no 10328/83 (ECtHR, 29 April 1988) para 78; F. v Switzerland App no 11329/85 (ECtHR, 18 December 1987) para 43; Vocaturo v Italy App no 11891/85 (ECtHR, 24 May 1991) para 21; Zanghì v Italy App no 11491/85 (ECtHR, 19 February 1991) para 26; Campbell and Cosans v The United Kingdom (Article 50) App nos 7511/76, 7743/76 (ECtHR, 23 March 1983) para 16; McGoff v Sweden App no 9017/80 (ECtHR, 26 October 1984) para 30 et seq. Cf. Chapter 17.3.1 (p 145). There are also exceptions to this principle, cf. Chapter 17.3.2 (p 150). 403 Certainly, this might only be argued if Convention provisions were to be interpreted as empowering the Court to comprehensively determine the Contracting States’ remedial obligations, as has been argued in Chapter 17.4 (p 162, Interim Conclusion at p 188) above. 404 Cf. Chapter 17.3.3 (p 154).



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it was for the Contracting States to choose the means to implement a judgment.405 There is indeed some room for this understanding: According to Article 46 § 1, the Contracting States have undertaken to “abide” by the final judgment of the Court to which they are parties in any case; which particular actions this abiding requires in an individual case does not directly derive from Article 46 § 1 itself, though. Acting on the assumption that the Convention only empowered the Court to declaring if the Convention was violated or not, whereas not to determine remedial obligations in its judgments, the Contracting States’ obligation to abide by these judgments is apparently particularly abstract, considering that neither the Court nor Article 46 § 1 determines which concrete remedial measures this abiding requires in the individual case. As a result of an assumed restriction of the Court to issue judgments finding a violation, if any, the Contracting States’ discretion when executing a judgment would, initially, extend to the whole execution process: If the Court was merely empowered to state if the Convention was violated, however, not to prescribe remedial measures, then it appears to be for the Contracting State concerned to draw the conclusions from the finding of a violation in a judgment. In other words, the traditional perception, according to which the Court was not competent to prescribe remedial measures, also defines the Contracting States’ freedom in executing a judgment: If the Court had no competences to prescribe remedial measures, then choosing the required measures would be within the domain of the respective Contracting State.406 Certainly, the remedial measures taken by the respondent State would have to be in line with the conclusions set out in the Court’s judgment, and they would have to stand supervision by the Committee according to Article 46 § 2.407 True, the obligation to “abide” by the Court’s judgments pursuant to Article 46 § 1 gets more concrete in the light of the set of obligations which specify the duty to abide by judgments of the Court. Accordingly, if a violation of the Convention has occurred, the Contracting State concerned has to take those individual and general measures which are required to fully

405 Grabenwarter, Pabel, Menschenrechtskonvention 103; Karl, ‘Vollzug’ 41; cf. also Van Dijk and others, Theory and Practice 298. 406 Cf. Karl, ‘Vollzug’ 41; Grabenwarter, Pabel, Menschenrechtskonvention 103; vaguely in Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004) para 202; Nasrulloyev v Russia App no 656/06 (ECtHR, 11 October 2007) para 95. 407 Cf. Scozzari and Giunta v Italy App nos 39221/98, 41963/98 (ECtHR, 13 July 2000) para 249; Sejdovic v Italy App no 56581/00 (ECtHR, 1 March 2006) para 127.

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remedy the violation408 (in the following, this set of obligations shall be referred to as the rules of responsibility for violations of the Convention). For instance, if the violation of the applicant was caused by domestic legislation, the respondent State is bound to alter the legislation or to make sure it is applied in a way which is in conformity with the Convention;409 therefore, this obligation puts the obligation to “abide” by judgments in more concrete terms. Nevertheless, this regime of obligations basically also merely stipulates obligations which a Contracting State might have, i.e. if the respective conditions are met in an individual case. In other words, the rules of responsibility need also to be applied to the concrete case; only in the light of the particular circumstances it may be said which obligations follow from these rules. If the Court merely finds that the Convention has been violated towards an individual, the specific obligations this violation entails are not obvious. Only an application of the rules of responsibility to the facts of the case will show which obligations the respondent State has in the concrete case, and, in particular, if it is also obliged to take general measures. Therefore, when taking the rules of responsibility into consideration, a restriction of the Court’s powers to issue judgments finding a violation also appears to leave a considerable choice of means in the execution process to the Contracting States. However, a reference to a declaratory character of the Court’s judgments does not satisfyingly answer the question if there is a scope of discretion of the Contracting States in the execution process. It was highlighted above that the exact meaning of the concept of the Court’s judgments being essentially declaratory was not clear, and that there were indications for differing interpretations in the Court’s case-law.410 On the one hand, this concept could be understood as paraphrasing that no Convention provision empowered the Court to go beyond the finding of a violation, if any, i.e. that no Convention provision could be interpreted as empowering the Court to prescribe remedial measures in its judgments. From this understanding it would indeed follow a scope of discretion of the Contracting States, as described in the previous paragraphs, that would derive from the abstractness of the duty to abide by judgments according to Article 46 § 1 and the necessity to apply the regime of obligations following a judgment to the concrete case.

408 Chapter 13.3 (p 72). 409 Cf. again Chapter 13.3 (p 72). 410 Chapter 17.3.3 (p 154).



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However, it has to be recalled that several Convention provisions may be interpreted as empowering the Court to prescribe remedial measures in judgments finding a violation, at least if widespread human rights problems in a Contracting State come to light.411 Considering the Court’s corresponding course of action in the pilot judgments, the just described borderline between the Court and the Contracting States in the execution process—finding of a violation by the Court, choosing the necessary means to remedy this violation by the respondent State—appears not to be applicable comprehensively. If Convention provisions empower the Court to prescribe remedial measures, thus, to interpret and apply the duty to abide by judgments with respect to individual cases, no scope of discretion of the Contracting States exists as an immediate consequence of a lack of respective powers of the Court. On the other hand, the Court has repeatedly invoked the Contracting States’ discretion as the reason for its lack of power to determine the respective Contracting State’s obligations in the execution process.412 However, if the Contracting States’ discretion in the execution process was the reason and origin of the Court’s lack of power to prescribe remedial measures, there would be no clear borderline between the Court’s and the Contracting States’ domains, since the scope of the Court’s powers would depend on how far the Contracting States’ discretion in the execution process actually reached. Therefore, the question arises if this discretion has an own legal substance, which shall be analysed in the following. 17.5.2.2 Obligations of Result A discretion of the Contracting States in the execution process may derive from the nature of the remedial obligations under the Convention. These obligations are described as obligations of result: How the Contracting States achieved this result was for them to decide;413 this corresponded with the rules of responsibility for violations of public international law in general.414 From this concept it could follow that the Contracting States were free in choosing the means to achieve the required result, and that a corresponding scope of discretion existed insofar. 411 Cf. Chapter 17.4 (p 162). 412 Eg. Pauwels v Belgium App no 10208/82 (ECtHR, 26 May 1988) para 41; Demicoli v Malta App no 13057/87 (ECtHR, 27 August 1991) para 45; Campbell and Cosans v The United Kingdom (Article 50) App nos 7511/76, 7743/76 (ECtHR, 23 March 1983) para 16; cf. again Chapter 17.3.3 (p 154). 413 Cremer, ‘Entscheidung’ 1730; Polakiewicz, ‘Execution’ 57. 414 Cf. the references at Polakiewicz, ‘Execution’ 57.

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This concept is to be concurred with to some extent: The rules of responsibility for violations of the Convention do not prescribe in detail which remedial measures a Contracting State has to take following the finding of a violation by the Court. These rules merely oblige the Contracting States to cease an on-going violation, to provide full restitution, and/or to prevent the recurrence of violations. In case domestic legislation is contrary to the Convention, the Contracting State concerned has to amend it, or has to make sure it is interpreted in conformity with the Convention. However, how this aim has to be achieved is not prescribed by the rules of responsibility.415 It is not determined, for instance, if domestic legislation conflicting with the Convention is to be repealed by the national constitutional court or to be amended by the domestic legislator416—or if just the way it is applied has to be changed.417 Furthermore, the rules of responsibility do not prescribe how a new legal provision has to be designed exactly as long as it is in conformity with the Convention in the result.418 Likewise, for instance, it is not determined by the Convention that the Contracting States have to reopen domestic proceedings following a finding of a violation by the Court.419 They only have to make sure that the person concerned by the violation is fully redressed; if this is achieved by reopening domestic proceedings or by other means is within the Contracting States’ discretion. Therefore, the Contracting States’ obligations in the execution process are rather abstract and thus limited: The Contracting States do not have to take measures which the rules of responsibility for violations of the Convention do not prescribe. Since, for instance, the Contracting States only have to make sure that similar violations are prevented in the future, they are not obliged to take any particular step of prevention—as long as they achieve the result of preventing future violations. This implies that the Contracting States’ obligations to execute a judgment are rather general; that they only prescribe the result to be achieved. Accordingly, the Contracting States have some scope of discretion on how to comply with a judgment. 415 Likewise Judge Malinverni in his Dissenting Opinion to Verein gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) App no 32772/02 (ECtHR, 30 June 2009) (para 18). 416 Grabenwarter, Pabel, Menschenrechtskonvention 103. 417 Cremer, ‘Entscheidung’ 1755. 418 Cf. Airey v Ireland App no 6289/73 (ECtHR, 9 October 1979) para 26. 419 Okresek, ‘Artikel 46 EMRK’ 7 et seq; Grabenwarter, Pabel, Menschenrechtskonvention 104; Judge Malinverni in his Dissenting Opinion to Verein gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) App no 32772/02 (ECtHR, 30 June 2009) (para 18).



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The concept of the Contracting States’ discretion or, respectively, of their choice of means in the execution process thus refers to the fact that the Contracting States’ obligations are rather abstract. As a rule, an obligation to take a particular step of execution does not exist according to the Convention, at least if there are potential other ways to achieve the result which is required in the light of the rules of responsibility. If there is more than one way to provide full reparation, there is no obligation to take a particular one but only to take any of them, as long as it ensures full reparation. Basically, it will also be for the Contracting State concerned to decide which means are suitable and if there is more than one means, since the rules of responsibility do not determine these aspects. Comparable limitations of the Contracting States’ obligations—and, accordingly, of potential powers of the Court to prescribe remedial measures—emanate from the fact that, as far as the Convention obliges the Contracting States to take general remedial measures, this obligation is closely related with Convention implementation. General measures have to be taken in case the domestic legal order is not in line with the requirements of the Convention, or, similarly, if the recurrence of similar violations is to be expected.420 By amending domestic legislation or by taking measures aimed at preventing future similar violations of the Convention, the Contracting States adapt their internal legal order to the requirements of the Convention. Therefore, general measures will, as a rule, amount to Convention implementation, a fact which has induced several legal commentators to ascribe the obligation to take general measures to Article 1 rather than to Article 46 § 1.421 Considering the duty to take general measures as aiming at Convention implementation, it is again necessary to focus on the nature of the obligation to implement the Convention. It is to be highlighted that, generally, the Convention does not prescribe concrete means to be taken in order to comply with the rights enshrined in it. As P. Mahoney puts it, standards of conduct rather than detailed rules were laid down in the Convention; consequently, there was a spectrum of choices available to the national authorities for fulfilling their duty of implementation.422 According to R. Bernhardt, the Contracting States were bound to make sure that national legislation and its application were ultimately in conformity with 420 Cf. exemplary Okresek, ‘Artikel 46 EMRK’ 10; Chapter 13.3.4 (p 76). 421 Meyer-Ladewig, Menschenrechtskonvention 400; similarly Frowein, Villiger, ‘Report’ 50; Klein, ‘Effect’ 708 et seq; cf. Chapter 13.3.4 (p 76) already. 422 Mahoney, ‘Judicial activism’ 78.

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the Convention; however, the way to achieve this result was not prescribed.423 The Court highlights also that the Convention in general did not lay down any specific manner for the Contracting States for ensuring the effective implementation of any of the provisions of the Convention within their internal law.424 Only the substance of the rights and freedoms set forth must be secured under the domestic legal order to everyone within the jurisdiction of the Contracting States in some form or another.425 Accordingly, since the Contracting States are not obliged to take particular means of implementation, the Court considered itself not to be empowered to prescribe any such particular means. In that regard, the Court stated in Airey that whilst Article 6 para. 1 … guarantees to litigants an effective right of access to the courts for the determination of their ‘civil rights and obligations’, it leaves to the State a free choice of the means to be used towards this end. The institution of a legal aid scheme—which Ireland now envisages in family law matters …—constitutes one of those means but there are others such as, for example, a simplification of procedure. In any event, it is not the Court’s function to indicate, let alone dictate, which measures should be taken; all that the Convention requires is that an individual should enjoy his effective right of access to the courts in conditions not at variance with Article 6 para. 1 …426

In addition, the Court has developed the doctrine of the margin of appreciation which also provides the Contracting States with a certain discretion when implementing the Convention.427 This margin of appreciation of the Contracting States is assumed to exist as regards the assessment of the factual circumstances of a case and of the application of relevant domestic legislation—which rests, according to the Court, primarily with

423 Bernhardt, ‘Gestaltungsspielraum’ 77; cf. also Siess-Scherz, ‘Subsid­iaritätsprinzip’ 90. 424 Swedish Engine Drivers’ Union v Sweden App no 5614/72 (ECtHR, 6 February 1976) para 50. 425 James and Others v The United Kingdom App no 8793/79 (ECtHR, 21 February 1986) para 84 with reference to Ireland v The United Kingdom App no 5310/71 (ECtHR, 18 January 1978) para 239; Lithgow and Others v The United Kingdom App nos 9006/80 and others (ECtHR, 8 July 1986) para 205; Petzold, ‘Subsidiarity’ 44. 426 Airey v Ireland App no 6289/73 (ECtHR, 9 October 1979) para 26. 427 For instance Handyside v The United Kingdom App no 5493/72 (ECtHR, 7 December 1976) para 48; Ireland v The United Kingdom App no 5310/71 (ECtHR, 18 January 1978) para 207; The Sunday Times v The United Kingdom App no 6538/74 (ECtHR, 26 April 1979) para 59; Dudgeon v The United Kingdom App no 7525/76 (ECtHR, 22 October 1981) para 52; cf. Spielmann, ‘Margin’ 2 et seq.



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the Contracting States.428 This concept is also referred to in order to concede to the Contracting States a certain discretion when interpreting the provisions of the Convention, notably of the limitation clauses comprised in Articles 8–11.429 The doctrine of the margin of appreciation is described as deriving from the idea that the Convention institutions are obliged to respect, within certain boundaries, the cultural and ideological variety of the Contracting States.430 Partly it is also said that the Contracting States’ obligations under the Convention are rather abstract and leave the decision on how to safeguard the rights enshrined in the Convention to the Contracting State concerned.431 Accordingly, the Court concedes a margin of appreciation to the Contracting States when applying the Convention and respectively reduces its supervisory activity.432 The Court solely scrutinizes if the Contracting States have used the discretion conceded to them in a reasonable fashion, and it they have not gone beyond the boundaries of this discretion.433 While the national authorities have some scope of discretion when adopting measures which may interfere with Convention rights, it remains the Court’s function to monitor that the Contracting States do not overstep this discretion.434 Thus, the domestic margin of appreciation is described as going hand in hand with a European supervision.435 It follows from the foregoing that, as a rule, the Contracting States are not under an obligation to take particular means of Convention implementation, and that their margin of appreciation when implementing the Convention is to be respected. However, an abstractness of remedial obligations or of obligations to implement the Convention does not necessarily mean that the Contracting States were free in every respect when executing a judgment: Which kind of remedial measures is required in a case (individual or also general 428 For instance Klaas v Germany App no 15473/89 (ECtHR, 22 September 1993) para 29; Miragall Escolano and Others v Spain App nos and others 38366/97 (ECtHR, 25 January 2000) para 33; Spielmann, ‘Margin’ 8 et seq. 429 Meyer-Ladewig, Menschenrechtskonvention 32; Van Dijk and others, Theory and Practice 335, 340 et seq. 430 Matscher, ‘Interpretation’ 75; cf. Handyside v The United Kingdom App no 5493/72 (ECtHR, 7 December 1976) para 48. 431 Mahoney, ‘Judicial activism’ 78 et seq. 432 Grabenwarter, Pabel, Menschenrechtskonvention 118; Frowein, Peukert, Menschenrechtskonvention 284. 433 Matscher, ‘Interpretation’ 75. 434 Frowein, Peukert, Menschenrechtskonvention 285. 435 Handyside v The United Kingdom App no 5493/72 (ECtHR, 7 December 1976) para 49.

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measures, amendment of domestic legislation or altering the way domestic legislation is applied), in other words: which result is to be achieved, is bindingly determined by the rules of responsibility in the light of a particular case—in contrast to the means to achieve this result.436 While, accordingly, there is no obligation to take particular means of execution, there is an obligation to achieve a particular result.437 In this respect the Contracting States are under an obligation to cease an on-going violation, to provide full restitution, or to take general measures of implementation and prevention, if the circumstances of a violation require these measures. For instance, if the applicant’s ill-treatment was caused by domestic legislation, then this legislation has to be adapted to the Convention requirements (or its proper application has to be ensured) in order to prevent future similar violations and to implement the Convention. As regards this obligatory result, the Contracting State concerned has no scope of discretion—it must achieve it. Consequently, the Contracting States are bound to achieve a particular result if circumstances so require. This applies similarly to Convention implementation in general: Although the Convention does not prescribe particular means of Convention implementation, the Contracting States have to implement it—in that respect, the Convention does not concede any discretion to the Contracting States. A distinction between the result to be achieved (in other words, the general application of the rules of responsibility) and the choice of means to achieve this result may reservedly be said to be reflected in the Court’s phrasing of the Contracting States’ discretion in the execution process: The Court has stated repeatedly that its judgment left the “choice of the means to be used in its domestic legal system to give effect to its obligation under Article [46 § 1]” to the State concerned.438 This implies that, in the Court’s opinion, the obligation under Article 46 § 1—i.e. the result to be achieved—was clear, and that merely the means to be used to give effect to this obligation were for the Contracting State concerned to choose.439 On another occasion, the Court prescribed general remedial measures and

436 Cf. Verein gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) App no 32772/02 (ECtHR, 30 June 2009) para 88 et seq. 437 Likewise Judge Malinverni in his Dissenting Opinion to Verein gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) App no 32772/02 (ECtHR, 30 June 2009) (para 18). 438 Eg. Pauwels v Belgium App no 10208/82 (ECtHR, 26 May 1988) para 41; likewise Vermeire v Belgium App no 12849/87 (ECtHR, 29 November 1991) para 26. 439 Cf. also Judge Costa, Partly Concurring Opinion to Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004): “The distinction between the choice of means and the obligation to achieve a specific result … “.



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stated at the same time that the respondent State must have a considerable margin of appreciation in selecting the measures to secure the Convention right in question;440 therefore, the Court distinguished between the result to be achieved—which it determined—and the particular means to achieve that result—which it left to the respondent State’s margin of appreciation. To sum up, the Convention obliges the Contracting States to obtain those results which derive, for each particular case, from the rules of responsibility for violations of the Convention. They have to achieve a certain result, for instance the adaption of the domestic legal order to the Convention, if respective shortcomings come to light. In other words, the Contracting States do have obligations to take a particular kind of remedial measures, for instance general measures of implementation or prevention. There is no discretion as regards the basic obligation to achieve this result or to take the respective kind of remedial measure. In contrast, the particular means to achieve this result, in other words the particular actions of Convention implementation or prevention, are not prescribed by the rules of responsibility for violations of the Convention, and are therefore for the Contracting States to decide. Accordingly, the Convention contains actual obligations of the Contracting States to implement the Convention and to execute judgments—as far as obligations are prescribed by the rules of responsibility for violations of the Convention or by the duty to implement the Convention. 17.5.3 Relation between the Contracting States’ Obligations and the Court’s Competences Competences of the Court to bindingly determine obligations of the Contracting States to take (particular) remedial measures are only to be assumed if there is a legal basis in the Convention for the obligations determined by the Court. In other words, the Court may not create obligations for the Contracting States which do not derive already from the Convention. This becomes apparent, for instance, when the Court denies its jurisdiction to direct a Contracting State to open a new trial or to quash a conviction.441 Since the Contracting States are not obliged to reopen 440 Maria Atanasiu and Others v Romania App nos 30767/05, 33800/06 (ECtHR, 12 October 2010) para 229–233; cf. also para 236 where the Court states that “the national authorities retain full discretion in choosing … the general measures to be laid down in the domestic legal system in order to put an end to the violations found by the Court”. 441 Eg. Lyons and Others v The United Kingdom App no 15227/03 (ECtHR, 8 July 2003) with reference to Saïdi v France App no 14647/89 (ECtHR, 20 September 1993) para 47 and

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domestic court proceedings,442 the Court is not empowered to direct the Contracting States to do so. Correspondingly, J. Meyer-Ladewig notes that the Court’s indication in several judgments, that the most appropriate form of redress would be for the applicant to be given a retrial without delay, was non-binding, since the Convention did not oblige the Contracting States to provide for a retrial in the domestic legal order in those cases under consideration.443 From this it may be followed that in the author’s opinion the Court cannot oblige the Contracting States to take a particular action if the Convention does not oblige the Contracting States to take that action. Accordingly, there is a correlation between the Contracting States’ obligations under the Convention on the one hand and the Court’s jurisdiction to order remedial measures on the other hand. From this it follows that, from the perspective of the Contracting States’ scope of discretion, the Court is barred from prescribing any particular means of execution, at least if there is potentially more than one approach to remedying a violation, since the Convention does not contain an obligation of the Contracting States to take particular actions of execution. Accordingly, the Court is not to be regarded as being empowered to prescribe particular means of execution or implementation, at least if there potentially are others.444 This also finds expression in Rule 61 of the Rules of Court, which governs the pilot-judgment procedure. According to Rule 61 § 3 the Court shall identify the type of remedial measures which the Contracting Party concerned is required to take at the domestic level. This implies that it is not for the Court to identify the particular remedial measures. As a rule, the question whether or not there is a variety of means will also be for the Contracting State to decide. This might only be different in obvious cases, as far as individual measures are concerned: For instance, if the applicant has been illegally detained for a considerable time when a judgment is delivered, the Contracting State will have no choice but to release the applicant from prison.445 As far as general remedial measures Pelladoah v the Netherlands App no 16737/90 (ECtHR, 22 September 1994) para 44; Verein gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) App no 32772/02 (ECtHR, 30 June 2009) para 89. 442 Okresek, ‘Artikel 46 EMRK’ 7 et seq; Grabenwarter, Pabel, Menschenrechtskonvention 104; Judge Malinverni in his Dissenting Opinion to Verein gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) App no 32772/02 (ECtHR, 30 June 2009) (para 18). 443 Meyer-Ladewig, Menschenrechtskonvention 389. 444 Likewise Breuer, ‘Urteilsfolgen’ 449; Breuer, ‘Abhilfemaßnahmen’ 263. 445 Cf. Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004) para 202; Tehrani and Others v Turkey App nos 32940/08 and others (ECtHR, 13 April 2010) 10th operative provision; cf. Ress, ‘Gerichtshof’ 72.



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are concerned, there will hardly ever be only one means available for a Contracting State to remedy a systemic problem—insofar the Court will, as a rule, be barred from prescribing particular means of execution or implementation. However, the Court is not necessarily excluded from determining which result is to be achieved by the Contracting State concerned, i.e. what follows from an application of the rules of responsibility, since these rules amount to actual obligations of the Contracting States.446 This applies similarly, as far as the execution of judgments amounts to Convention implementation: The obligation to implement the Convention being one of result does not necessarily mean that the Court may not be empowered at all to prescribe remedial measures due to discretionary domains of the Contracting States. True, the Contracting States are not under an obligation to take particular means of Convention implementation, and their margin of appreciation when implementing the Convention is to be respected.447 Nevertheless, the Contracting States have to implement the Convention—in that respect, the Convention does not concede any discretion to the Contracting States. Consequently, it is to be assumed that there is no interference with their discretion if the Convention institutions merely prescribe the result to be achieved, i.e. that a Convention right has to be fully implemented, in case shortcomings in that respect have come to light. This leaves the question to be answered, who is empowered to apply the rules of responsibility; in other words, who may decide which results are to be achieved and, in particular, who may decide if general measures are required. A first step in answering this question has been conducted in previous Chapters, which concluded that Convention provisions can be interpreted as empowering the Court to prescribe remedial measures.448 In the following it is to be examined if the Court may prescribe remedial actions without interfering with the Contracting States’ discretion in executing a judgment or in implementing the Convention. Before turning to express determinations of remedial obligations, as the Court included in the pilot judgments, it is to be stated that the Court’s judgments appear to determine implicitly remedial obligations to a certain extent as a rule, thus, even if a judgment does not contain explicit determinations—as shall be examined in the following. 446 Chapter 17.5.2.2 (p 199) just above. 447 Again Chapter 17.5.2.2 (p 199) just above. 448 Chapter 17.4 (conclusion at p 192).

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17.5.4.1 General Considerations Which result of execution or implementation is to be achieved in a specific case depends on the concrete circumstances and derives from the Court’s judgment.449 The mere finding of a violation of the Convention in an individual case, i.e. without express determinations of remedial obligations, may also entail obligations of the Contracting State concerned to take measures of execution of that judgment.450 Which measures a State has to take does usually not derive from explicit determinations by the Court, but has to be deduced from the (reasoning of the) judgment.451 The rules of responsibility for violations of the Convention oblige the Contracting States to take remedial actions if certain conditions are met: Only if, for instance, domestic legislation is not in conformity with the Convention, the Contracting State concerned has to adapt it or has to secure its proper application. The factual circumstances which are constitutive for a particular kind of remedial obligation under the rules of responsibility will, in many cases, be part of the judgment of the Court, at least as regards the factual circumstances which are constitutive for the obligations to take individual measures: Whether or not a violation is still on-going or the applicant has sustained any damage will be clear from the Court’s judgments, considering that they contain an account of the facts of the case.452 But if a violation in an individual case was in fact caused by structural deficiencies in a Contracting State will usually, at least implicitly, also derive from the Court’s judgment, since the Court examines the applicable domestic legislation and practice in its judgments.453 Since the Court’s rulings have a binding effect on the Contracting States, the latter have to acknowledge the Court’s findings, including those on the constitutive facts for the application of the rules of responsibility. If it arises from the Court’s judgment that the applicant has suffered a loss, then the respective findings of the Court are binding upon the respondent State which entails, in principle, an obligation to provide full reparation (cf. Article 41). If the Court finds that the ill-treatment of the applicant was prompted by domestic legislation or, more generally, if the circumstances 449 Meyer-Ladewig, Menschenrechtskonvention 396. 450 Cremer, ‘Entscheidung’ 1730. 451 Meyer-Ladewig, Menschenrechtskonvention 396; Okresek, ‘Umsetzung’ 171 et seq; Garlicki, Westerdiek, ‘Normenkontrollen’ 518. 452 Grabenwarter, Pabel, Menschenrechtskonvention 86. 453 Grabenwarter, Pabel, Menschenrechtskonvention 86.



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of the case indicate a risk of repetition of the violation found, this finding will also lead to obligations of the respondent State to take remedial measures.454 In this case it will follow from an application of the rules of responsibility that the respondent State has to take general measures (preventing the recurrence of similar violations and adjusting the domestic legal order to the Convention).455 If the Court finds that an individual violation stems from domestic legislation, the respondent State will be bound to alter this legislation or to make sure it is applied in a way which is consistent with the Convention.456 The required remedial measures and the result to be achieved by them may also be determined by the Court’s findings to a certain extent. If the Court makes clear that a particular Convention right was not only violated by the turn of events in the applicant’s case, but that the Contracting State concerned had not made sure that this right was adhered to in its domestic legal structures, then it will not only be clear that general remedial measures have to be taken, but also that those measures have to make sure that the respective Convention right is respected in future similar cases. For instance, if the Court finds that a Contracting State has failed to provide persons concerned by non-enforcement of domestic court decisions with an effective domestic remedy, it will not only be clear that general measures are mandatory, but also that those measures will have to make sure that there will be an effective remedy for future victims of nonenforcement of domestic court decisions. The Contracting State concerned will be obliged to fully implement the Convention in the particular field under consideration. Therefore, the Court’s findings determine as a rule the remedial result to be achieved by the Contracting State concerned, since they determine if the conditions of the rules of responsibility for violations of the Convention are met (for instance, if domestic legislation is in conflict with the Convention). If the Court (implicitly) establishes these constitutive elements, the Contracting State concerned will be under the obligation to comply with the implications of the rules of responsibility in the light of

454 Eg. Okresek, ‘Umsetzung’ 171; cf. generally Chapter 16.3.5 (p 128). 455 Cf. Polakiewicz, Verpflichtung 167: “Der in diesem Zusammenhang immer wieder betonte Handlungsspielraum des betroffenen Staates bei Vollzug der Urteile … kann sich hierbei nicht auf die Verpflichtung zur Beseitigung des (alten) konventionswidrigen Rechts, sondern nur auf die Gestaltung der (neuen) konventionskonformen Rechtslage beziehen”. This aspect is also pointed out by Eschment, Musterprozesse 105. 456 Cremer, ‘Entscheidung’ 1755.

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the violations found. Apart from that, the respondent State is free in choosing the particular means to comply with this obligation. Going one step further, it is to be recalled that the Court is not hindered from incorporating an examination of the structural circumstances of an individual violation in its judgment, and that it may pronounce that domestic structures are not in conformity with the Convention: The Court’s task of ensuring the observance of the Convention by way of examining individual applications involves general features, reaching beyond the individual applicant’s interests; the Court’s role in the individual complaints procedure is not limited to awarding individual redress to the applicant.457 Competences of the Court to examine the structural background of an individual violation are to be assumed particularly in case of widespread human rights problems threatening the effective functioning of the Strasbourg system.458 Considering that findings in a judgment concerning domestic legal structures that are in conflict with the Convention have a binding effect on the Contracting State concerned, it is to be concluded that the Court is empowered to (implicitly) determine the Contracting States’ remedial obligations to a certain extent by way of including respective findings as to the “structural” circumstances of the case in its judgments. As far as remedial obligations of the Contracting States are determined by those findings, the Court has a means at its disposal to determine the remedial obligations of the Contracting States. Certainly, such implicit determinations will be less unambiguous than explicit prescriptions of measures and will potentially leave more room for differing interpretations. In this light, the concept saying that the Contracting States’ discretion was constituted by the Court’s judgments being “declaratory” is to be criticised.459 Judgments which include the structural background of an individual violation but, apart from that, solely find that the applicant’s rights have been violated, are also still to be considered as “declaratory” in the common understanding, saying that the Court may not (explicitly) determine remedial obligations. Nevertheless, the Court (implicitly) determines the respective State’s obligation to take general measures to a certain extent by including such findings. Therefore, also without assuming competences of the Court to explicitly prescribe general remedial measures, it still cannot be said that the decision on the required remedial 457 Cf. Chapter 16.3.3 (p 120). 458 Cf. Chapter 17.4.3.2 (p 172) and Chapter 17.4.6 (p 181). 459 Cf. as to this concept Chapters 17.3.3 (p 154) and 17.5.2.2 (p 199).



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measures rested fully with the Contracting States: They are bound by the  obligations deriving from the rules of responsibility if structural shortcomings come to light and are elaborated on in a judgment by the Court. That the Contracting States are, initially, comprehensively free in deciding on the required remedial measures could only be said, if at all, if “declaratory” meant a restriction of the Court’s competences to examining the very turn of events which adversely affected the individual applicant, i.e. if it meant that the Court lacked competences to include the structural background of this individual ill-treatment. Such a restriction of the subject matter of proceedings before the Court is to be rejected, though.460 Consequently, even if it was assumed that no Convention provision empowered the Court to expressly determine the Contracting States’ remedial obligations in a judgment, deciding on the required remedial measures would still not (fully) rest with the Contracting State concerned. To sum up, the Court’s judgments implicitly determine the remedial results to be achieved by the Contracting States if the Convention was violated. On the basis of the Court’s findings on the circumstances of individual violations, it will most probably be clear which kind of remedial measure is to be taken by the respondent State, and which aim these measures must have. This implies, in turn, that it is not necessarily the Contracting States’ domain to decide which kind of remedial measure is required. If it is clear from the Court’s findings in a judgment that shortcomings in the implementation of the Convention exist, then it follows from the binding effect of its judgments that the Contracting State concerned has to take general remedial measures. 17.5.4.2 In Case of the Pilot-Judgment Procedures The existence of shortcomings in the implementation of the Convention was particularly clear in the pilot-judgment procedures. As was concluded above, the pilot judgments highlighted previous failures of the Contracting States concerned to implement the Convention which included, in most cases, failures to comprehensively execute previous judgments.461 Accordingly, in its reasoning and in the operative part of Rumpf the Court found that the respondent State had recurrently failed to ensure that proceedings before domestic courts were completed within a reasonable 460 Cf. Chapter 16 (p 103). 461 Chapters 12.3 (p 67) and 13.4 (p 83).

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time, and that it had failed to take measures enabling applicants to claim redress.462 Similarly, in Burdov, Olaru and Yuriy Nikolayewich Ivanov the Court found that the respondent States had repeatedly failed to comply (in due time) with final judgments, and that concerned persons had no effective domestic remedy.463 Furthermore, it made clear that this was not due to a particular turn of events in the individual cases, but that it was rather the result of structural shortcomings.464 From these findings it followed already from the application of the rules of responsibility that an effective domestic remedy was to be installed, which was available in cases of excessively long proceedings or of non-enforcement of court decisions. After each previous judgment the Contracting State concerned would have been under the obligation to take general measures in order to prevent similar violations in the future and to adjust the domestic legal order to the requirements of the Convention—in other words, to install an effective domestic remedy. This obligation would have been clear even without highlighting the widespread problem, considering the repeated findings of similar violations in judgments against the same Contracting State previous to the pilot judgment.465 In Broniowski it was also clear from the reasoning of the judgment and from the findings on the systemic problem in the operative part that the applicant—and other Bug River claimants—had been deprived of their Convention right due to shortcomings in the respondent State’s domestic legal system.466 From this it followed that general measures which made sure that the applicant and the remaining Bug River claimants could enjoy their right under Article 1 of Protocol No 1 were to be taken; the implementation of the latter provision was to be secured in accordance with the Convention. This applies equally to Hutten-Czapska, where the Court found that domestic legislation had deprived the applicant of his right under

462 Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) para 64 et seq; 4th operative provision. 463 Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) 3rd operative provision; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) 4th operative provision; similarly Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) 5th operative provision. 464 Eg. Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 131 et seq. 465 Cf. for instance the judgments referred to in Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) para 53 et seq. 466 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 187, 189, 3rd operative provision. .



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Article 1 of Protocol No 1—as it had numerous other persons.467 Consid­ ering these findings, it is clear that general measures, aiming at the implementation of Article 1 of Protocol No 1 with respect to landlords who were affected by the incriminated rent control scheme, were to be taken by the respondent State. In Greens and M.T. and Suljagić the Court also found that domestic legislation or domestic practice had deprived the applicant and other persons of their rights under the Convention,468 so that general measures of implementation were called for. In Greens and M.T. the respondent State had to implement prisoners’ right to vote; in Suljagić the State concerned had to made sure that owners of foreign currency savings could enjoy their right under Article 1 of Protocol No 1. Until the completion of this examination in 2012, only in its judgment in Grudić the Court did not elaborate on the existence of a systemic problem or included any findings in that regard in the operative part of the judgment.469 In this case, the respondent State’s obligation to take general remedial measures—as explicitly determined by the Court in the operative part—did not derive from the (findings on) the circumstances of the case already. Consequently, it is to be assumed that, on the basis of the Court’s findings on the underlying structural problem in most pilot judgments, the Contracting States were already bound to take general remedial measures aimed at implementing the Convention with respect to the problems found—even if the Court had not explicitly stated this obligation. Insofar, the Contracting States concerned had no scope of discretion if also general remedial measures were required and at what these measures should aim; the Court’s findings bindingly determined the remedial results to be achieved. 17.5.5 Explicit Determination of Remedial Obligations 17.5.5.1 General Considerations If the Court highlights a structural problem at the root of the individual violation found, this finding has a binding effect on the Contracting State concerned. This binding effect amounts to the obligation of the State 467 Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 235 et seq., 2nd and 3rd operative provision. 468 Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 110; Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) para 55–57. 469 Cf. Grudić v Serbia App no 31925/08 (ECtHR, 17 April 2012).

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concerned to bring its domestic legal order in line with the requirements of the Convention (so to prevent future similar violations). Thus, by way of highlighting a structural problem or a danger of repetitive applications, the Court may determine that a Contracting State has to take general measures of implementation of prevention. By highlighting the nature and roots of that problem, the Court’s findings will even determine the content or aim of the remedial obligation to a certain extent. Again, this binding effect will also only comprise an obligation to achieve a certain result of execution or implementation; the particular measures to achieve this result will be for the respective Contracting States to choose. Considering this, there will not be a substantial difference between the Court highlighting shortcomings in the implementation of the Convention—which entails an obligation of the respondent State to take general remedial measures—on the one hand, and the Court explicitly determining the State’s obligation to take those measures on the other hand—as long as the Court does not prescribe particular remedial actions. The Contracting States’ scope of discretion is not encroached upon if the Court merely finds that the Convention is to be fully implemented in a certain field, without going into further detail: This obligation would equally already exist due to the existence of the widespread structural deficiency and the Court’s findings on it. If the Court finds, for instance, that there was no effective domestic remedy in a Contracting State, allowing persons concerned to complain about violations of the Convention in a certain field, then the State concerned will have to install such a remedy; only by doing so it will adjust its domestic legal order to the requirements of the Convention and, therefore, prevent future similar violations, as it is obliged to do according to the rules of responsibility for violations of the Convention. An explicit order by the Court to install an effective domestic remedy, without further specifying the concrete modalities of it, will not add any further remedial obligations of the State concerned—and will insofar not interfere with its discretion. Nevertheless, the Contracting States are only obliged to achieve the result of Convention implementation in the respective field, while they are not obliged to take particular means of implementation.470 If the Court confines itself to finding that the Convention was to be fully implemented in the field under consideration, without ordering particular measures of implementation, it will not determine obligations beyond

470 Cf. again Chapter 17.5.2.2 (p 199).



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those which already exist due to the widespread problems and the Court’s findings in that regard. Therefore, the Court’s explicit determinations must not order particular measures of Convention implementation; if this was the case in the pilot judgments, is to be examined in the following. It is to be analysed if the remedial obligations which the Court determined in the operative part of the pilot judgments already existed as a result of the (Court’s findings on the) systemic problems. 17.5.5.2 The Court’s Determinations in Detail An examination of the Court’s determinations shows that the Court has used several repeating elements of determining the Contracting States’ obligations, which were partly rather unspecific, and which partly merely repeated general obligations of the Contracting States under the Convention: First, the Court’s orders are to be considered as not encroaching upon the Contracting States’ discretion if they merely prescribe that measures of implementation have to be taken in accordance with the Convention.471 It is self-evident that general remedial measures will only suffice if they are Convention compliant; in other words, if they indeed implement the respective right of the Convention. Any such phrasing used by the Court in its pilot judgments does not add any substantial obligatory content and does not interfere with the Contracting States’ discretion. Therefore, there is no interference if the Court determines, for instance, that the right to property of the Bug River-claimants has to be implemented “in accordance with the principles of protection of property rights under Article 1 of Protocol No. 1”,472 that the Contracting State concerned has to install a domestic remedy which is “in line with the Convention principles as established in the Court’s case-law”,473 or that domestic legislation has to be amended “in a manner which is Convention-compliant”.474 471 For instance Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) 4th operative provision; Maria Atanasiu and Others v Romania App nos 30767/05, 33800/06 (ECtHR, 12 October 2010) 6th operative provision. 472 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) 4th operative provision; similarly Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) 4th operative provision. 473 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) 6th operative provision; Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) 4th operative provision; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) 5th operative provision; Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) 5th operative provision. 474 Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) 6th operative provision.

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Secondly, in some judgments the Court determined that the aim of fully implementing the Convention was to be reached “through appropriate legal measures and administrative practices”475 or “through appropriate legal and/or other measures”.476 These phrases also appear not to contain any specific obligatory content. First, it is self-evident that remedial measures have to be “appropriate”; anything else would not secure Convention implementation. Secondly, “legal measures and administrative practices” apparently cover all potential kind of measures which may lead to Convention implementation, which is even more clear if the Court leaves the choice as to the kind of measures to the respondent State altogether (“and/or other measures”). With such determinations the Court does not restrict the Contracting States’ scope of discretion when executing a judgment. Thirdly, it is to be assumed that the Contracting States’ discretionary domains do not restrict the Court to literally repeating the wording of the respective Convention right which is to be fully implemented by the Contracting State concerned, or to solely state that general remedial measures have to be taken. In fact, the Court does not prescribe more than the Contracting States are obliged to take according to the Convention if it determines the respective Contracting State’s obligation to implement the Convention in a phrasing which is adjusted to the circumstances of the concrete case—as long as it does not go beyond determining, in substance, that the Convention has to be implemented in the particular respect: In several judgments, for instance, the Court ordered the Contracting States concerned to set up “an effective domestic remedy or combination of such remedies” which “secures adequate and sufficient redress for nonenforcement or delayed enforcement of domestic judgments”477 or which is “capable of securing adequate and sufficient redress for excessively long proceedings”.478 In those cases the Court only prescribed the implementation of a Convention right (that is, Article 13) and limited the scope of its 475 Lukenda v Slovenia App no 23032/02 (ECtHR, 6 October 2005) 5th operative provision; Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) 4th operative provision. 476 Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) 4th operative provision. 477 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) 6th operative provision; Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) 4th operative provision; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) 5th operative provision. 478 Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) 5th operative provision.



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order to the field under consideration in the judgment (that is, delayed or non-enforcement of judgments or decisions; excessively long proceedings). Thus, these orders are not to be seen as prescribing concrete actions to be taken by the respondent States, but they are rather to be seen as a limitation of the scope of the Court’s orders to cases similar to that of the “pilot”-applicant. In other words, the Court did not order effective domestic remedies to be installed generally, it did not order Article 13 to be implemented comprehensively on the domestic level, but it only ordered domestic remedies to be installed with respect to the problems of nonenforcement of judgments and of excessively long proceedings. This conclusion applies similarly to cases in which the Court ordered the respondent States to set up an effective remedy which “complies with the requirements set out in this judgment”.479 In those judgments the Court referred to the reasoning of the judgment (“set out in this judgment”); however, the “requirements” as set out by the Court amounted to acknowledged general principles of the Court’s case-law concerning effective domestic remedies.480 The Court merely summarized principles of its case-law in the respective field and directed the Contracting States concerned to install remedies in accordance with those principles. Therefore, it directed, in essence, the respondent States to implement the Convention and confined itself to referring to general principles instead of applying them to the concrete case. As a result, the Court’s orders in those judgments did also not go beyond ordering that the Convention was to be implemented in accordance with its general principles. The determinations of general remedial measures in several other pilot judgments also merely prescribe, in substance, the implementation of the Convention right in question. In Broniowski the Court directed the respondent State to “secure the implementation of the property right in question in respect of the remaining Bug River claimants or provide them with equivalent redress in lieu, in accordance with the principles of protection of property rights under Article 1 of Protocol No. 1”.481 The Contracting 479 Finger v Bulgaria App no 37346/05 (ECtHR, 10 May 2011) 5th operative provision; Dimitrov and Hamanov v Bulgaria App nos 48059/06, 2708/09 (ECtHR, 10 May 2011) 6th operative provision. 480 Cf. Finger v Bulgaria App no 37346/05 (ECtHR, 10 May 2011) para 130 et seq; Dimitrov and Hamanov v Bulgaria App nos 48059/06, 2708/09 (ECtHR, 10 May 2011) para 125 et seq; cf. as to the requirements of Article 13 for instance Grabenwarter, Pabel, Menschenrechtskonvention 483 et seq. 481 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) 4th operative provision.

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States have to secure the implementation of the rights of the Convention in any case; since the Court merely determined this general obligation and limited its scope to the Bug River cases, there was no further obligatory content than the one it derived already from the (findings on the) widespread systemic problem: that the right to property was to be fully implemented. The choice between implementation and redress which the Court left to the respondent State in fact covered all potential alternatives: In order to make sure that all persons concerned enjoyed their Convention right, this right was either to be implemented so that concerned persons could claim their property, or the concerned persons were to be granted redress. Consequently, in Broniowski the Court’s determinations merely made clear that the Convention was to be implemented in the respective field, which was already clear in the light of the (findings on the) widespread systemic problem; the Court respected the respondent State’s freedom of choice in executing the judgment.482 Considering this, it is questionable if the Court did indeed “explain the precise scope of the general measures to be taken”, as the Court’s determinations in Broniowski were later described by judges of the Court483—in fact, the Court’s determinations were rather general. In Hutten-Czapska the respondent State was ordered by the Court to “secure in its domestic legal order a mechanism maintaining a fair balance between the interests of landlords and the general interest of the community, in accordance with the standards of protection of property rights under the Convention”.484 In this case the Court also merely prescribed, in essence, the implementation of the right to property in a phrasing adjusted to the legal question under consideration: According to general case-law principles, which also apply to Article 1 of Protocol No 1, the Contracting States have to strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.485 Since, according to the Court, this balance was missing in the respondent State’s national legal order, it had to implement it in order to comply with the Convention. This conclusion 482 Similarly Degener, Mahoney, ‘Test case’ 193. 483 Separate Opinion of Judge Zagrebelsky joined by Judge Jaeger in Hutten-Czapska v Poland (friendly settlement) App no 35014/97 (ECtHR, 28 April 2008). 484 Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) 4th operative provision. 485 Sporrong and Lönnroth v Sweden App no 7151/75, 7152/75 (ECtHR, 23 September 1982) para 69; Prötsch v Austria App no 15508/89 (ECtHR, 15 November 1996) para 43; Grabenwarter, Pabel, Menschenrechtskonvention 513.



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only presupposes that by “legal order” the Court did not only mean domestic legislation, since, as a rule, there are various ways to implement the rights of the Convention. That the Court ordered a Contracting State to enact the required “legislation” in another pilot judgment486 is an indication that by “legal order” the Court did not only refer to legislation, and left it thus to the respondent State in which way it intended to implement the respective Convention right. To sum up, the Court has used different approaches to determine the remedial obligations in the operative part of its judgments. As long as its determinations merely paraphrases that the Convention is to be fully implemented in the respective field under consideration, they merely prescribe obligations which equally exist already as a result of the existence of the widespread systemic problem (and the Court’s elaborations on it). In the pilot judgments just mentioned exemplary, the Court’s determinations were within these boundaries. Cases of doubt shall be considered in the following. 17.5.5.3 Problematic Cases Orders to amend domestic legislation are to be seen with some reservation: In Greens and M.T. the Court ordered the respondent State to “(a) bring forward … legislative proposals intended to amend the 1983 Act and, if appropriate, the 2002 Act in a manner which is Convention-compliant; and (b) enact the required legislation within any such period as may be determined by the Committee of Ministers”.487 True, domestic legislation may constitute a violation of the Convention as such if it introduces, directs, or authorises measures incompatible with the rights and freedoms safeguarded by the Convention;488 furthermore, it is undoubted that the Contracting States are under an obligation to implement the Convention and to prevent the occurrence of future similar violations deriving from the defective legislation. However, it is questionable if this implementation may only be effectuated by way of legislative changes. J. Polakiewicz argues that only an amendment of the law was sufficient to comply with a judgment which 486 Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) 6th operative provision; cf. below instantly. 487 Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) 6th operative provision. 488 Ireland v The United Kingdom App no 5310/71 (ECtHR, 18 January 1978) para 240; cf. Chapter 12.2 (at p 63).

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finds domestic legislation to be contrary to the Convention, whereas a mere change of application or interpretation of domestic legislation was insufficient.489 Based on this view, the Court’s orders would insofar not encroach upon the respondent State’s scope of discretion: Since the Court had found the relevant domestic legislation to be in conflict with the Convention,490 there was an obligation to amend it. As regards the content of the amendment, the Court confined itself to referring to general principles of Convention law,491 and thus respected the Contracting State’s discretion in executing the judgment. However, several legal commentators argue that, as a rule in cases of domestic legislation being in conflict with the Convention, the Contracting States were allowed to choose between either amending the law or making sure that it is applied in conformity with the Convention.492 Based on this view, the Court’s orders in Greens and M.T. are to be regarded as problematic: The Court unconditionally determined the respondent State to amend its domestic legislation; a mere change in its application would apparently not have sufficed to comply with the Court’s determination. When acting on the assumption that the Convention merely obliged the Contracting States either to amend domestic legislation or to ensure its proper application, they would not be obliged to amend it—since it would be equally Convention compliant if they chose to merely alter the way it is applied by state organs. Apart from Greens and M.T., also the Court’s determinations in Suljagić and in Grudić are to be seen critically. In Suljagić judgment the Court ordered the respondent State to ensure “that government bonds are issued  … [and that] any outstanding instalments are paid in the Federation of Bosnia and Herzegovina; … that the Federation of Bosnia and Herzegovina undertakes to pay default interest at the statutory rate in the event of late payment of any forthcoming instalment”.493 The respondent State—Bosnia and Herzegovina—had undertaken to reimburse owners of foreign currency savings which had been deposited with 489 Polakiewicz, Verpflichtungen 162. 490 Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 78; previously already Hirst v The United Kingdom (No 2) App no 74025/01 (ECtHR, 6 October 2005) para 82. 491 Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 113 et seq. 492 Frowein, Villiger, ‘Report’ 51 et seq; Cremer, ‘Entscheidung’ 1754; cf. Chapter 13.3.4 (p 76). 493 Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) 4th operative provision.



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national banks in the Socialist Federal Republic of Yugoslavia and which had been expended by the regime, so that the depositors could not withdraw their money. According to the latest domestic legislation of the respondent State, the owners of “old” foreign currency savings were to be recompensed in cash and government bonds.494 The applicant—as well as other persons in a similar position—had received insufficient compensation until the day he had lodged his application with the Court.495 Proceeding on this situation, there was a violation of Article 1 of Protocol No 1, since the respondent State had failed to comply with its own legislation awarding financial claims to individuals.496 Considering this, the Court’s orders in the operative part of Suljagić appear to be rather specific. True, the violation of the Convention in this case was caused by the fact that the respondent State had awarded financial claims to individuals by domestic legislation and did not comply with this legislation in the following. The violation of the right to protection of property was not constituted by interferences with existing possessions, but by failures of the respondent State to obey its own legislation awarding financial claims, so that the respondent State failed to attain the concerned persons’ legitimate expectations.497 In this light, it would follow that Convention implementation could only be brought about by simply executing a national law. However, in my opinion this does not mean that in these cases the Convention obliges the Contracting States to execute national legislation in each modality, but it obliges them to implement the right to protection of property in essence. Article 1 of Protocol No 1 does not oblige the Contracting State to make sure that “government bonds are issued …”; neither is this stipulated by Article 46 § 1 and the rules of responsibility for violations of the Convention deriving from this provision. As the Court held on another occasion with respect to Article 6, “all that the Convention requires is that an individual should enjoy his effective right of access to the courts in conditions not at variance with 494 Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) para 6 et seq. 495 Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) para 20 et seq. 496 Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) para 56. 497 Cf. again Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) para 56; similarly Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 125, 129; cf. Gospodinova v Bulgaria App no 37912/97 (ECtHR, 16 April 1998); cf. also Preußische Treuhand GmbH & Co. KG a.A. v Poland App no 47550/06 (ECtHR, 7 October 2008) para 64; Grabenwarter, Pabel, Menschenrechtskonvention 498.

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Article 6 para. 1”.498 In Suljagić, all what followed from the Convention in  terms of general measures was that future similar violations of the Convention should be prevented, and that the Convention should be implemented with respect to claims of compensation of individuals who owned foreign currency savings. It may not be ruled out that there would have been other potential measures than those determined by the Court. In this light, the Court’s determinations in Suljagić are to be regarded as too detailed and thus as restricting the Contracting States’ scope of discretion in implementing the Convention and in executing the judgment. These considerations apply similarly to the Court’s determinations in Grudić, where it held that the respondent Government must take all appropriate measures to ensure that the competent Serbian authorities implement the relevant laws in order to secure payment of the pensions and arrears in question.499 Rather unusual among the Court’s determinations in its pilot judgments, in Ananyev and Others the Court held that the respondent State “must produce, in co-operation with the Committee of Ministers, within six months from the date on which this judgment becomes final, a binding time frame in which to make available a combination of effective remedies having preventive and compensatory effects and complying with the requirements set out in the present judgment”. As regards the aim of the remedial measures—making available a combination of effective remedies having preventive and compensatory effects and complying with the requirements set out in Court’s judgment—there is no substantial deviation from most other pilot judgments: The Court simply ordered the implementation of the Convention right in question. As regards the obligation to produce a binding time frame it is to be noted that this order appears to alleviate the burden on the respondent State in fact, since it is only required to produce a concept, rather than a fully working domestic remedy. Also the order to co-operate with the Committee is unproblematic, since the respondent State was under supervision of the Committee when executing the judgment anyway according to Article 46 § 2. Therefore, as a result, the Court’s orders in Ananyev and Others are unproblematic as regards the respondent State’s scope of discretion.

498 Airey v Ireland App no 6289/73 (ECtHR, 9 October 1979) para 26; cf. Chapter 17.5.2.2 (at p 202). 499 Grudić v Serbia App no 31925/08 (ECtHR, 17 April 2012) 3rd operative provision.



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17.5.5.4. Time Limits Set by the Court In the operative part of several pilot judgments the Court included time limits which ranged so far between six500 and 18 months.501 In other cases the Court merely stated in the reasoning of the judgment that the relevant measures should be adopted “within a reasonable time”, while refraining from including any further deadline in the operative part.502 Initially, time limits appear not to be in conflict with the Contracting States’ scope of discretion in the execution process: Apparently, the Contracting States have to abide by judgments of the Court; this can only  mean that the required remedial measures have to be taken promptly, and that they have to be concluded as soon as possible. In turn, there is no obligation under the Convention to execute a judgment in a shorter time. Therefore, the Contracting States are under the obligation to execute a judgment as soon as possible; which time limit this involves will be a matter of the particular case, and it will depend on various factors, especially if general remedial measures are required. However, there is no choice of means of the Contracting States as regards the amount of time which the execution of the judgment takes, since the Contracting States are indeed obliged to execute judgments within this time frame; there might only be some discretion in estimating the time which is required to execute. As regards time limits, the Court also may only determine obligations of the Contracting States in its judgments if they correspond with the Convention. This requirement will clearly be met if the Court merely prescribes remedial measures to be taken within a reasonable time, as it was done in several pilot judgments.503 If the Court sets concrete time limits, it will depend on various factors if the prescribed time frames are sufficient to execute a judgment. Considering that systemic problems are, as a rule, well-known, and that they have existed over years in the respective Contracting State, a shorter time limitation than in other cases seems appropriate.

500 Eg. Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) 4th operative provision. 501 Maria Atanasiu and Others v Romania App nos 30767/05, 33800/06 (ECtHR, 12 October 2010) 6th operative provision. 502 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 198; HuttenCzapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 247. 503 Cf. again Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 198; Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 247.

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Therefore, time limits are not per se in conflict with the Contracting States’ obligations under the Convention, since the Contracting States have to execute judgments finding a violation at the earliest date possible in any case. Only if the Court prescribes measures of implementation to be concluded within a shorter time than the respective Contracting State may possibly accomplish, there will be a conflict with the Convention. 17.5.6 Interim Conclusion A scope of discretion of the Contracting States when implementing the Convention and when executing judgments finding a violation is inherent in the nature of the obligations deriving from the Convention: They are obligations of result and they do not, as a rule, bind the Contracting States to take particular measures of implementation or execution. This determines the Court’s competences; the Court may only determine obligations which correspond with the obligations deriving from the Convention in individual cases. Since the Contracting States are not obliged to take particular actions of Convention implementation, the Court may not prescribe any particular actions—at least if there potentially are others. Nevertheless, the Contracting States must implement the Convention and must remedy violations of it—these are actual obligations of the Contracting States. As a result, the Court is not barred from determining that the Convention is to be fully implemented and that judgments finding a violation are to be fully executed—including the adoption of general remedial measures, if necessary. In fact, these obligations are regularly already determined by the Court through its findings on the circumstances of the applicant’s ill-treatment, in particular, if there is a widespread systemic problem which the applicant’s case was a manifestation of. Considering this, it must be followed that there is no interference with the Contracting States’ discretion in the execution process even if the Court explicitly determines those obligations in the operative part of judgments. The Court only has to confine itself to determinations of obligations to fully implement the Convention and to fully execute its judgments. This restriction is also adhered to if the Court paraphrases this obligation, or if it adapts its phrasing to the respective systemic problem under consideration in a judgment. In contrast, if the Court exceeds these boundaries by prescribing particular remedial measures (as it may be the case in Greens and M.T. and Suljagić504), it aims at 504 Cf. Chapter 17.5.5.3 (p 219).



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determining obligations of the Contracting States which do not have a basis in the Convention and thus goes beyond its competences. From this it follows that the Court’s competences to determine remedial obligations in a judgment are in fact rather limited, namely to highlighting obligations which would equally exist as a result of (the Court’s findings on) the systemic problem already. The Court may only determine particular remedial measures if it is beyond doubt that there are no alternatives to the measures prescribed, thus, if there is in fact no choice of means available to the Contracting State concerned.505 Apart from that, it may only order the Contracting States to implement the Convention in general terms. The former option—cases without a real choice of means— will mostly be restricted to questions of individual remedial measures.506 In case of systemic problems rooted in domestic legislation or administrative practice there will usually be manifold suitable ways to remedy the problem, so that the Contracting State concerned is only obliged to take any of them, however, not to take a particular one of them. As a result, in case of systemic problems the Court will, as a rule, not be competent to prescribe particular remedial measures. It may only prescribe that the Convention is to be fully implemented, and that the respective judgments are to be fully executed—without going into further detail. In other words, with respect to general remedial measures aimed at resolving a widespread systemic problem, the Court is only empowered to dictate that this problem is to be resolved in a way which is Convention compliant. 17.6 Exclusive Powers of the Committee 17.6.1 Introduction Exclusive powers of the Committee have repeatedly been invoked as being in tension with the Court’s approach of determining obligations to take general remedial measures in pilot-judgments. In Sejdovic the respondent government stated, with respect to the Court’s giving fairly detailed indications of the general measures to be taken by the Contracting States, that the Committee was “the only Council of Europe body empowered to say 505 Cf. Breuer, ‘Urteilsfolgen’ 449; Breuer, ‘Abhilfemaßnahmen’ 263; Degener, Mahoney, ‘Test case’ 193; cf. also Ress, ‘Gerichtshof’ 72. 506 Eg. Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004) para 202; Verein gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) App no 32772/02 (ECtHR, 30 June 2009) para 88; cf. again Degener, Mahoney, ‘Test case’ 193.

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whether a general measure was necessary, adequate and sufficient”.507 According to L. Caflisch, it could be said, with respect to the Court’s findings of systemic problems and identifications of required remedial measures in the operative part of its pilot judgments, that the Court had challenged the Committee’s monopoly in the execution process.508 In its Partly Dissenting Opinion to Hutten-Czapska Judge Zagrebelsky considers that “judgments such as the present one undermine the relationship between the two pillars of the Convention system—the Court and the Committee of Ministers—and entrust the Court with duties outside its own sphere of competence”; by determining which general measures the respondent State has to take the Court “is entering territory belonging specifically to the realm of politics”.509 Thus, it is to be asked if exclusive powers of the Committee prohibit the Court from determining obligations to take general remedial measures in (pilot) judgments. Beforehand, the relevance of exclusive powers of a Convention organ (if any) for the Court’s competences, respectively the relevance of a “separation of powers” between Convention organs, is to be examined. 17.6.2 “Separation of Powers” between Convention Organs In legal doctrine it has been referred to a separation of powers between the Court and the Committee as regards the question which Convention organ was competent to take the actions which are characteristic for the pilot-judgment procedure. L. Caflisch notes, for instance, that in accordance with the principle of separation of powers it is for the Committee, and not for the Court, to supervise the execution of judgments also on the international level.510 The concept of separation of powers is genuine for national constitutional law, and it is usually referred to in order to describe or establish a distinction of powers between the legislative, judicial, and administrative

507 Sejdovic v Italy App no 56581/00 (ECtHR, 1 March 2006) para 116; cf. Degener, Mahoney, ‘Test case’ 192. 508 Caflisch, ‘Pilot-Fälle’ 522. 509 Partly Dissenting Opinion of Judge Zagrebelsky to Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006); cf. also Sadurski, ‘Partnering’ 423. 510 Caflisch, ‘Pilot-Fälle’ 521: “In getreuer Befolgung des Grundsatzes der Gewaltentrennung auch auf völkerrechtlicher Ebene ist also die Vollstreckung von Urteilen nicht Sache des Gerichtshofs selbst, sondern des betroffenen Staates unter Aufsicht des Ministerkomitees”.



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branch in a state.511 If national legal orders comprise a separation of powers, acts by state organs being in conflict with it may possibly be challenged before supervising institutions, e.g. constitutional courts.512 On the international level the question of a separation of powers becomes relevant in terms of an attribution of competences to single organs of international organizations: Initially, it constitutes a principle of public international law that international organizations hold only those competences which have been conferred on them by the signatories of its founding treaty (and the amendments to it).513 If competences which are attributed to an international organization as a whole514 are transgressed, the international organization acts ultra vires—be it because it usurps “new” competences which have no basis in the founding treaty at all, or be it because it exceeds existing competences.515 But also if founding treaties attribute competences to certain organs of an international organization,516 acts which are taken by another organ (i.e. an organ which is not equipped with respective competences) are a transgress of power and therefore ultra vires acts.517 Therefore, as regards competences which are only attributed to a single organ, the other organs of an international organization have to respect this attribution of competences within the framework of the organization.518 Accordingly, there might also be said to be a separation of powers or a division of functions between organs of international organizations on the international level if the founding treaties concede exclusive powers to particular organs. Under which circumstances ultra vires acts may be valid and binding is a controversial question519 511 Walter, Mayer, Kucsko-Stadlmayer, Bundesverfassungsrecht 88; Nohlen, Schultze, Politikwissenschaft 282. 512 Cf., in the Austrian legal order, the competences of the constitutional court to rescind domestic legislation which violates, for instance, the separation between the judiciary and the administrative branch, which is mandatory according to the Austrian Federal Constitution (Articles 94 and 140 of the Federal Constitutional Law). 513 Cf. Klein, Schmahl, ‘Organisationen’ 351; Weiß, Kompetenzlehre 358 with further reference. Principle of Conferral in European Union law: Article 5 TEU, cf. for instance Chalmers, Davies, Monti, European Union Law 211–213. 514 “Verbandskompetenz”: Weiß, Kompetenzlehre 337. 515 Cf. Weiß, Kompetenzlehre 383 et seq. 516 Cf. as to competences of single organs of international organisations Weiß, Kompetenzlehre 337. 517 Cf. Weiß, Kompetenzlehre 385, 417; Klein, Schmahl, ‘Organisationen’ 352. 518 Cf. ICJ, Certain expenses 168: “If it is agreed that the action in question is within the scope of the functions of the Organization but it is alleged that it has been initiated or carried out in a manner not in conformity with the division of functions among the several organs which the Charter prescribes, one moves to the internal plane, to the internal structure of the Organization”. 519 Cf. Weiß, Kompetenzlehre 420; Klein, Schmahl, ‘Organisationen’ 352 et seq.

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which does not become relevant though as long as (the organ of) the international organization acts within its powers; thus, this question is to be clarified beforehand. This also applies to the Convention which does not comprise an explicit stipulation of a separation of powers, as it may be found in national constitutions.520 Instead, the Convention attributes certain powers to different Convention organs, for instance the Court’s powers under Article 32 and the provisions referred to therein, or the Committee’s power to supervise the execution of final judgments according to Article 46 § 2. If these powers are conceded exclusively to one Convention organ, it follows that other Convention organs are excluded from taking actions in that respect; any such action would be beyond the competences of that other organ and thus ultra vires. Therefore, the question arises if there is an exclusive attribution of powers to Convention organs which in turn excludes competences of the Court to determine general remedial measures in its judgments. In the following, the Court’s case-law and legal doctrine shall be analysed as regards this question (Chapter 17.6.3.1). Thereupon, it shall be examined what follows from Article 46 § 2 as regards a separation of powers between the Court and the Committee in the execution process (Chapter 17.6.3.2). Following that, it shall be asked if the travaux préparatoires to the Convention contain revealing information concerning this question (Chapter 17.6.3.3). 17.6.3 Determination of General Remedial Measures and Exclusive Powers of the Committee 17.6.3.1 Case-Law and Legal Doctrine In the following, the Court’s case-law as well as legal doctrine shall be examined as regards the question if the Court is barred from prescribing remedial measures due to (exclusive) powers of the Committee to supervise the execution of judgments. On several occasions previous to the first pilot judgment the Court indicated that, due to respective powers of the Committee, it was not competent to make orders to take remedial actions directed at the respondent State. In Soering the Court held that it “is not empowered under the Convention to make accessory directions of the kind requested by the applicant …. By virtue of Article 54 (now Article 46 § 2, author’s remark) …, 520 Cf. for instance Article 94 of the Austrian Federal Constitutional Law or Article 20 of the Basic Law for the Federal Republic of Germany.



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the responsibility for supervising execution of the Court’s judgment rests with the Committee of Ministers of the Council of Europe.”521 In Akdivar the Court also refused to “make consequential orders …. It falls to the Committee of Ministers acting under Article 54 of the Convention (now Article 46 § 2, author’s remark) to supervise compliance in this respect”.522 In legal doctrine L. Wildhaber differentiates between establishing the existence of a violation which fell to the Court, and the supervision of the execution of judgments which fell to the Committee;523 this statement may be interpreted reservedly as implying that any procedural step which went beyond establishing the existence of a violation (thus also a determination of remedial measures) was not for the Court, since there were respective competences of the Committee. As was already cited above, L. Caflisch notes that, due to a separation of powers between the Court and the Committee, it was for the Committee rather than for the Court to supervise the execution of judgments.524 However, L. Caflisch does not further elaborate which measures of execution are within the exclusive power of the Committee, and thus not for the Court to take; especially L. Caflisch does not state if the Court was restricted to finding a violation, if any, as a result of assumed competences of the Committee to decide which remedial measures are required following a judgment finding a violation. The Explanatory Report to Protocol No. 14 also seems to support the view that the Court was not empowered to go beyond finding a violation of the Convention and beyond awarding just satisfaction to the applicant: In the context of the new competence of the Court to rule on questions of interpretation of a judgment (Article 46 § 3), the drafters stated that the aim of this new competence was to enable the Court to give an interpretation of a judgment, and not to pronounce on the measures taken by a Contracting State in order to comply with that judgment.525 In any case, it is to be highlighted that in the majority of cases in which the Court refused to prescribe remedial measures, it did so with reference to a declaratory character of its judgments or to the Contracting States’ 521 Soering v The United Kingdom App no 14038/88 (ECtHR, 7 July 1989) para 127. 522 Akdivar and Others v Turkey (Article 50) App no 21893/93 (ECtHR, 1 April 1998) para 47. 523 Wildhaber, ‘Letter’ 285. 524 Caflisch, ‘Pilot-Fälle’ 521. 525 Council of Europe, ‘Explanatory Report to Protocol No 14’ para 97. In Sejdovic the respondent Government adopted a similar view; cf. Sejdovic v Italy App no 56581/00 (ECtHR, 1 March 2006) para 117.

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discretion in the execution process526 rather than to exclusive competences of the Committee. Thus, exclusive powers of the Committee were rarely invoked by the Court in order to deny its competences to prescribe remedial measures.527 Nevertheless, Article 46 § 2—as the central Convention provision which governs the Committee’s powers, and which thus excludes powers of other Convention organs—shall be examined in the following. Beforehand, it is to be noted that the question if the Court may determine remedial measures—given any exclusive powers of the Committee— is to be distinguished from the question if the Court may deliver a judgment finding a violation based on the respondent State’s failure to execute a previous judgment. In this respect, Article 35 § 2 stipulates that the Court shall not deal with any application that is substantially the same as a matter that has already been examined by the Court, which corresponds with the Committee’s power to supervise execution of judgments according to Article 46 § 1. Only in case the respondent State’s actions when dealing with a judgment finding a violation give rise to a new breach of the Convention (i.e. one which is not only constituted by the respondent State’s failure to fully execute that judgment), the Court is empowered to consider it.528 However, this aspect of a division of functions between the Court and the Committee is not relevant in the context of the pilotjudgment procedure, where the key question is if the Court may prescribe remedial measures, rather than if an applicant may complain to the Court if a judgment finding a violation of his Convention rights has not been executed. Considering this, in the following it shall be examined if Article 46 § 2 stipulates that the Court must not prescribe remedial measures in its judgments due to competences of the Committee to supervise the execution of judgments. 17.6.3.2 Article 46 § 2 Initially, it is to be noted that, in the course of proceedings following an individual application which lead to a judgment finding a violation, it has 526 Cf. Chapters 17.3.3 (p 154). 527 Cf. the judgments already cited above: Soering v The United Kingdom App no 14038/88 (ECtHR, 7 July 1989) para 127; Akdivar and Others v Turkey (Article 50) App no 21893/93 (ECtHR, 1 April 1998) para 47. 528 Verein gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) App no 32772/02 (ECtHR, 30 June 2009) para 61–63; cf. also Okresek, ‘Umsetzung’ 170.



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to be decided at some point which remedial measures are required in the execution of this judgment. Theoretically, this decision could be taken comprehensively by the Court in its judgments in each case by way of determining which remedial measures are to be taken by the respondent State (beyond a decision on just satisfaction according to Article 41). On the other hand, this question could also be decided on by the Committee: If the Court confined itself to finding if the Convention was violated and to awarding just satisfaction, if any, it would be an undetermined question, initially, if and which other remedial obligations existed and, in particular, if general remedial measures were also required. In this case, this question would have to be decided on by the Committee when supervising the execution of the judgment, since the crucial question which the Committee has to decide—if a matter has been resolved—depends on and presupposes the question which remedial measures were to be taken by the respondent State in order to resolve the matter. Only if this question has been decided, the Committee is in a position to assess if a matter has been duly resolved. Therefore, it is to be asked which of the two Convention organs may decide on the question which remedial measures are required in a specific case. Initially, it does not necessarily derive from the wording of Article 46 § 2 that the decision on the required remedial measures fell exclusively to the Committee, so that the Court had no competences in that regard. In fact, the phrasing of this provision indicates the opposite: Article 46 § 2 merely stipulates that the “final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution”; however, it does not define the content of the judgments which have to be transmitted to the Committee. Article 46 § 2 merely speaks of final judgments. From this it could be followed that the Committee had to supervise any judgment of the Court, irrespective of its content—be it with determinations of (general) remedial measures in the operative part or not. Thus, the wording of Article 46 § 2 could be interpreted as denying any exclusive powers of the Committee as regards the decision which remedial measures are required in a case.529 Certainly, such exclusive powers of the Committee would exist if the Court’s powers were limited to issuing judgments finding a violation due to other Convention provisions: If it was to be assumed that no Convention

529 Cf. also the elaborations on Article 46 § 1 and the Contracting States’ scope of discretion in Chapter 17.5.2.1 (at p 196).

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provision empowered the Court to prescribe remedial measures, the Committee’s task of supervising the execution of final judgments according to Article 46 § 2 would necessarily involve the decision which remedial measures were required, since the Court’s judgments would not contain any findings on that question. However, such exclusive powers of the Committee would not derive from the Committee’s domain itself, but they would merely derive from other Convention provisions which govern the Court’s powers—and which do not concede any power to the Court to determine remedial obligations. In turn, this would imply that the Committee’s domain would depend on how the scope of the Court’s powers is defined by these provisions: If Convention provisions empowered the Court to prescribe remedial measures, the Committee’s domain would correspondingly be limited. In fact, as was elaborated on above, several Convention provisions can indeed be interpreted as empowering the Court to prescribe remedial measures, at least in case of widespread human rights problems threatening the functioning of the Strasbourg system.530 Acting on this assumption, from the point of view of the Committee’s powers, the Court is competent to determine the Contracting States’ remedial obligation, and is insofar not restricted by exclusive competences of the Committee. Considering this, it suffices to note that the Committee’s Resolution on judgments revealing an underlying systemic problem531 can not be invoked as establishing powers of the Court to determine remedial measures in its judgments, and as denying exclusive powers of the Committee in this respect, if there were any. As was said above, powers of the Court and the Committee may only be established by the Convention, however, not by the organs of the Convention itself.532 Besides, the Committee’s resolution merely invites the Court to identify what it considers to be an underlying systemic problem and the source of this problem, whereas it does not invite the Court to determine remedial measures. The Rules of Court—according to Rule 61 of which the Court shall identify the type of remedial measures which the Contracting Party concerned is required to take at the domestic level—can also not be invoked to shift powers from the Committee to the Court, if this was necessary for 530 Cf. the conclusion in Chapter 17.4 (at p 192). 531 Committee of Ministers, ‘Resolution on judgments revealing an underlying systemic problem’. 532 Cf. Klein, Schmahl, ‘Organisationen’ 351; Weiß, Kompetenzlehre 358 with further reference; Chapters 16.3.2 (p 117) and 17.4.5 (p 181).



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the Court to prescribe remedial measures at all. The Rules of Court—i.e. the Court itself—cannot concede powers to Convention organs—this is an exclusive matter of the Contracting States. However, Rule 61 reflects the Court’s opinion that an identification of the type of required remedial measures was in conformity with the Convention, thus also with the separation of powers between the Court and the Committee. In my view, Judge Zagrebelsky’s objection, presented in its Partly Dissenting Opinion to Hutten-Czapska, according to which the Court entered territory belonging specifically to the realm of politics by determining remedial measures in its judgments especially since they involved a total overhaul of the legal system governing owners’ rights vis-à-vis tenants,533 is not to be followed necessarily. First, the only question to be answered is if the Convention empowers the Court to determine obligations to take general remedial measures—which has been answered in the affirmative. Reasons of practicability are only relevant as far as they manifest themselves in Convention provisions, which is not the case. Secondly, it is to be noted that, due to the Contracting States’ discretion when implementing the Convention and when executing judgments, the Court is only empowered to determine remedial measures in an abstract way,534 which leaves room for the Contracting State concerned to decide on the particular remedial measures in the political process on the domestic level. Considering this, if the Court respects these boundaries, it does not anticipate the Committee’s assessment of the required remedial measures to an undue extent, but it only orders the Convention to be implemented in the field under consideration. From the perspective of the Court’s determinations, it remains for the Committee do decide if the concrete remedial measures taken by the respondent State suffice. True, it is exactly this vagueness of the Court’s determinations which induces Judge Zagrebelsky to consider if the Court’s orders are binding at all and also to conclude that they do not add to the Strasbourg system’s efficiency.535 Judge Zagrebelsky is to be agreed with to a certain extent in that regard: As was said above, the restrictions on the Court’s power to determine remedial measures, caused by the Contracting States choice of means when implementing the

533 Partly Dissenting Opinion of Judge Zagrebelsky to Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006). 534 Cf. Chapter 17.5.5.2 (p 215), and as to problematic cases in this regard Chapter 17.5.5.3 (p 219). 535 Cf. again the Partly Dissenting Opinion of Judge Zagrebelsky to Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006).

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Convention and when executing judgments, give rise to the conclusion that the main relevance of the Court’s determinations of general remedial measures in pilot judgments—if they respect the Contracting States’ choice of means—lies in the fact that it is most clear that general remedial measures have to be taken to remedy a systemic problem. Which concrete measures the Contracting State concerned has to take must not derive from the Court’s determinations though.536 To sum up, the wording of Article 46 § 2 does not restrict the Court from determining obligations of the Contracting States to take general remedial measures. Since Convention provisions may be interpreted as empowering the Court to do so, the Committee has to supervise that the respective Contracting State acts as prescribed. In the following, this conclusion shall be compared with the preparatory works to the Convention. 17.6.3.3 Travaux Préparatoires In pursuance of Articles 31 and 32 of the Vienna Convention on the Law of Treaties,537 the travaux préparatoires to the Convention may be referred to as a supplementary means of Convention interpretation in order to confirm that an interpretation is in accordance with the ordinary meaning to be given to the terms of the Convention in their context and in the light of its object and purpose; or if this interpretation leaves the meaning ambiguous, or obscure, or leads to a result which is manifestly absurd or unreasonable.538 In the draft Convention presented by the European Movement to the Committee of Ministers in 1949539 Article 14 (as the equivalent to current Article 46 § 2) still read: “In the event of failure to comply with a judgment of the Court the matter shall be brought before the Council of Europe, which shall take such action as it may consider appropriate.”540 The draft which was thereupon presented by the Consultative Assembly was 536 Cf. Chapter 17.5.6 (p 224). 537 Cf. as to the relevance of the Vienna Convention as regards the interpretation of the Convention Golder v The United Kingdom App no 4451/70 (ECtHR, 21 February 1975) para 29; Mamatkulov and Askarov v Turkey App nos 46827/99, 46951/99 (ECtHR, 4 February 2005) para 111; Cremer, ‘Konventionsinterpretation’ 163; Matscher, ‘Interpretation’ 65; cf. also n 14 (p 55). 538 Cf. as to the relevance of the travaux préparatoires Chapter 17.4.7.1 (p 189). 539 Cf. as to the various stages in the process of drafting the Convention Grote, ‘Entstehungsgeschichte’ 22 et seq. 540 Cited after the Registry’s Working Document on the drafting history of Articles 53 and 54 p 2, accessed 28 October 2012.



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shortened in comparison and read: “The findings of the Court shall be transmitted to the Committee of Ministers.”541 The draft of the Committee of Experts on Human Rights, which was submitted in March 1950, read: “The judgment of the Court shall be transmitted to the Committee of Ministers which shall supervise its execution”,542 and essentially represented, accordingly, the current wording of Article 46 § 2. In the comment concerning this Article the Committee of Experts stated that it is “expressly stipulated here that it is for the Committee of Ministers to supervise their (the Court’s judgments, author’s remark) execution.”543 The text of the respective provisions in the draft Convention of the Conference of Senior Officials of Human Rights544 and of the Committee of Ministers545 were identical with the Committee of Experts’ draft as was the text which was finally adopted by the Committee of Ministers.546 The drafting history of (current) Article 46 § 2 shows that no draft version of this provision contained a division of functions between the Court and the Committee, as regards the procedural steps which the Court may or may not take in its judgments, due to an exclusive attribution of powers to the Committee. Instead, all draft versions—as well as the final version as adopted by the Committee—dealt with judgments of the Court as they may ever be, since the respective phrasing does not contain any limitation of the contents of a judgment. Generally, it appears that the primary focus during the drafting process was on the question how to ensure that the Court’s judgments are adhered to, including the question which organ should be entrusted with this task; however, the focus was not on the question which determinations the Court should be empowered to include in its judgments. This is reflected in the draft version of the European Movement which still explicitly deals with occurrences of failures to comply with a judgment.547 The discussions in the Consultative Assembly, for instance, also reflect that the delegates’ concern was the question of compliance with judgments, rather than which procedural steps the Court may take in its judgments.548 Therefore, the division of functions between 541 Collected Edition Vol. II, 282. 542 Collected Edition Vol. IV, 74. 543 Collected Edition Vol. IV, 46. 544 Collected Edition Vol. IV, 292. 545 Collected Edition Vol. V, 140. 546 Collected Edition Vol. VII, 72. 547 Cf. n 540 (p 234). 548 Cf. the statements at the sittings of the Consultative Assembly on 16th, 17th and 19th August 1949, Collected Edition Vol. I, 30, 34, 72 et seq., 90, 122 et seq., 136. Cf. also Grote, ‘Entstehungsgeschichte’ 27.

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the Court and the Committee which emerges from the travaux préparatoires has as its borderline the judgments of the Court. If there is a judgment of the Court, supervision of its execution falls to the Committee. However, the preparatory works to the Convention do not limit the content of this judgment from the perspective of a division of functions; especially, they do not rule out that the Court may decide on the required remedial measures in its judgments. From this it follows that the travaux préparatoires do not support the assumption of a limitation of the Court’s powers to issue judgments finding a violation (if any) and to awarding just satisfaction (if necessary). Only the supervision of the execution of existing judgments is referred to the Committee. True, it does either not explicitly derive from the travaux préparatoires regarding Article 46 § 2 that the Court was empowered to prescribe remedial measures—the travaux préparatoires just do not elaborate on that point, as far as can be seen. Accordingly, the significance of the travaux préparatoires for the present question—whether or not the Court was restricted from prescribing remedial measures, due to exclusive competences of the Committee—is limited. If at all, the travaux préparatoires may be said to support the point of view that, from the perspective of division of functions, the Convention does not restrict the Court from determining remedial measures in its judgments, since no such intention of the drafters derives from the preparatory works to the Convention. However, the travaux préparatoires do not contribute a clear confirmation of an interpretation of the Convention in the light of the primary methods of interpretation—which Article 31 of the Vienna Convention stipulates as the relevance of the travaux préparatoires.549 17.6.3.4 Interim Conclusion It follows from the Convention that there are no exclusive competences of the Committee to decide on the remedial measures which are required following a violation of the Convention. The Committee’s competences are built upon judgments of the Court in that the Committee has to supervise the execution of the judgments as they are delivered by the Court; however, they do not restrict the Court’s competences as regards the content of that judgments. From this it follows that, from the point of view of the Committee’s powers in the execution process, the Court is not barred from prescribing remedial measures in its judgments.550 549 Cf. Chapter 17.4.7.1 (p 189). 550 Likewise Breuer, ‘Piloturteilstechnik’ 6.



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This conclusion is put into perspective though, considering that the Court’s power to prescribe remedial measures is limited by the Contracting States’ choice of means when implementing the Convention and when executing judgments: The Court may only order the Convention to be fully implemented in the field of the systemic problem or to fully execute a judgment; however, it may not prescribe particular remedial measures.551 This abstractness of the Court’s determinations leaves plenty of room for the Committee to decide on the appropriateness of remedial measures actually taken by the respondent State.

551 Cf. Chapter 17.5.5.1 (p 213).

CHAPTER EIGHTEEN

ASSESSMENT OF GENERAL MEASURES IN FRIENDLY SETTLEMENT JUDGMENTS 18.1 Introduction The Court’s proactive role in the process of the execution of the pilot judgment has been identified as one of the characteristic elements of the pilot-judgment procedure.552 This commitment of the Court manifests itself in two different ways: In friendly settlement judgments553 towards the “pilot”-applicant, and in striking out decisions towards “parallel”applicants, i.e. applicants who complain about violations which are caused by the same systemic problem as was already subject of the pilot judgment. In this Chapter, the Court’s friendly settlement judgments, and in Chapter 19, the Court’s striking out decisions shall be analysed. In several pilot-judgment procedures the Court assessed general remedial measures envisaged or already taken by the Contracting States in the aftermath of its pilot judgments in judgments on friendly settlements between the “pilot”-applicant and the respondent State.554 It is to be asked if the Court has the respective competences to examine the reform steps intended to resolve a systemic problem in these judgments on friendly settlements. Legal commentators have elaborated on this approach with scepticism, especially as regards the relationship between the Court and the Committee: Judges Zagrebelsky and Jaeger criticise the Court’s approach of assessing general remedial measures, which have been taken by the respondent State following a pilot judgment, in a friendly settlement decision: 552 Cf. Chapter 9.4 (p 47). 553 Basically, according to Rule 43 § 3 of the Rules of Court, striking applications out of the Court’s list after a friendly settlement has been effected is done by means of a decision. However, in the cases under consideration the Court issued judgments. 554 Eg. Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005); Hutten-Czapska v Poland (friendly settlement) App no 35014/97 (ECtHR, 28 April 2008). In other friendly settlement judgments between the “pilot”-applicant and the respondent State, the Court did not focus on general remedial measures at all, cf. for instance Lungu v Moldova App no 17911/08 (ECtHR, 6 April 2010) with respect to the pilot judgment in the case of Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009).



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“The Court is not competent (and does not have the necessary knowledge) to express a view in the abstract and in advance on the consequences of the reforms already introduced in Poland and to give a vague positive assessment of a legislative development whose practical application might subsequently be challenged by new applicants. … The Court … should be wary of making comments on that issue … so as not to disturb unduly the balance provided in the Convention system between its own role and that of the Committee of Ministers”.555 A. Buyse concurs with the Judges in that respect.556 Also W. Sadurski considers, with reference to the just cited separate opinions in the early pilot-judgment procedures, that the Court was entering a risky path as regards its relationship with the Committee.557 M. Breuer concludes that the pilot-judgment procedure, especially the Court’s approach of assessing remedial measures taken by Contracting States following pilot judgments, led to a redefinition of the relationship between the Court and the Committee.558 In the following, the Court’s practice of assessing measures of implementation is to be examined (Chapter 18.2). Thereupon, the question if the Court’s assessment of the respondent State’s measures of implementation in judgments on friendly settlements is in conformity with the Convention is to be considered (Chapter 18.3), followed by an examination as to the relevance of the Court’s course of action for the pilot-judgment procedure (Chapter 18.4). 18.2 The Court’s Practice in the Pilot-Judgment Procedures First, the Court found in the operative part of several pilot judgments that, as far as the financial award to the “pilot”-applicant for any damage was concerned, the question of the application of Article 41 was not ready for decision.559 Accordingly, it reserved this question as a whole and invited the Government and the applicant to submit their written observations on the matter within a specified time from the date of notification of the pilot judgment, and, in particular, to notify the Court of any agreement 555 Separate Opinion of Judge Zagrebelsky joined by Judge Jaeger in Hutten-Czapska v Poland (friendly settlement) App no 35014/97 (ECtHR, 28 April 2008). 556 Buyse, ‘Procedure’ 89. 557 Sadurski, ‘Partnering’ 423. 558 Breuer, ‘Individualbeschwerde’ 124. 559 As will be elaborated on in Chapter 18.4 (p 252) below, in other pilot judgments the Court decided on just satisfaction for the applicant in the pilot judgment already.

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that they may reach, and reserved the further procedure.560 Subsequently, the Court assessed the remedial measures envisaged and already taken by the respective Contracting State in friendly settlement judgments.561 In those judgments the Court did not confine its examination to individual measures of redress, adopted towards the individual applicant, but also included envisaged or adopted general remedial measures in its considerations. In Broniowski, for instance, the Court held that [in] the context of a friendly settlement reached after delivery of a pilot judgment on the merits of the case, the notion of “respect for human rights as defined in the Convention and the Protocols thereto” necessarily extends beyond the sole interests of the individual applicant and requires the Court to examine the case also from the point view of “relevant general measures”. … in view of the systemic or structural character of the shortcoming at the root of the finding of a violation in a pilot judgment, it is evidently desirable for the effective functioning of the Convention system that individual and general redress should go hand in hand. The respondent State has within its power to take the necessary general and individual measures at the same time and to proceed to a friendly settlement with the applicant on the basis of an agreement incorporating both categories of measures, thereby strengthening the subsidiary character of the Convention system of human rights protection and facilitating the performance of the respective tasks of the Court and the Committee of Ministers under Articles 41 and 46 of the Convention. … 37. In these circumstances, in determining whether it can strike the present application out of its list pursuant to Articles 39 and 37 § 1 (b) of the Convention on the ground that the matter has been resolved and that respect for human rights as defined in the Convention and its Protocols does not require its further examination, it is appropriate for the Court to have regard not only to the applicant’s individual situation but also to measures aimed at resolving the underlying general defect in the Polish legal order identified in the principal judgment as the source of the violation found.562

After examining the general measures envisaged and already taken by the respondent State,563 the Court concluded that 560 Eg. Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) 5th operative provision; this was not done, for instance, in Finger v Bulgaria App no 37346/05 (ECtHR, 10 May 2011), cf. the 6th and 7th operative provision. 561 Eg. Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005); Hutten-Czapska v Poland (friendly settlement) App no 35014/97 (ECtHR, 28 April 2008). 562 Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005) para 36 et seq. 563 Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005) para 39–41.



general measures in friendly settlement judgments241 [in] their amending legislation and in their declaration in the friendly settlement, the respondent Government have, in the Court’s view, demonstrated an active commitment to take measures intended to remedy the systemic defects found both by the Court in its principal judgment and by the Polish Constitutional Court in its judgment of December 2004. While, by virtue of Article 46 of the Convention, it is for the Committee of Ministers to evaluate these general measures and their implementation as far as the supervision of the execution of the Court’s principal judgment is concerned (see also Rule 43 § 3 of the Rules of Court), the Court, in exercising its own competence to decide whether to strike the case out of its list under Articles 37 § 1 (b) and 39 following a friendly settlement between the parties, cannot but rely on the respondent’s Government’s actual and promised remedial action as a positive factor going to the issue of “respect for human rights as defined in the Convention and the Protocols thereto” (see paragraph 37 above).564

Thus, the Court stated that, when assessing a friendly settlement reached after a pilot judgment has been issued, also general remedial measures were to be taken into consideration in deciding if the settlement was reached with due “respect for human rights as defined in the Convention” (cf. Articles 37 and 39). Consequently, the Court examined the general remedial measures envisaged or taken by the respondent State.565 In its conclusion the Court was content with noting that the respondent State had demonstrated an active commitment to take measures intended to remedy the systemic defects found.566 In Hutten-Czapska, for instance, the Court proceeded similarly.567 Therefore, the Court in fact assessed general remedial measures envisaged or already taken by Contracting States following pilot judgments, which raises questions as to competences of the Court to do so, especially as regards the relation between the Court and the Committee. In the following, a legal basis for the Court’s course of action shall be ascertained (Chapter 18.3.1), followed by an analysis of the relation between the Court’s practice and the Committee’s power to supervise the execution of judgments (Chapter 18.3.2).

564 Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005) para 42. 565 Cf. the reference in n 563. 566 Cf. again Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005) para 42. 567 Cf. Hutten-Czapska v Poland (friendly settlement) App no 35014/97 (ECtHR, 28 April 2008) para 31 et seq., 43.

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The Court examined general remedial measures envisaged or already taken following pilot judgments in judgments on friendly settlements between the “pilot”-applicant and the respondent State. Therefore, it is to be examined if Article 39, which governs friendly settlements, is a suitable legal basis for this approach. Generally, friendly settlements are primarily reached before,568 but may also be reached after, the delivery of a judgment finding a violation, as the wording of the Convention suggests (“at any stage of the proceedings”, Article 39 § 1), and as Rule 75 of the Rules of Court presupposes.569 Also before the first pilot judgment was delivered, the Court had issued various judgments reserving the question as to just satisfaction with a view to an agreement possibly reached by the parties following its judgment.570 Therefore, as regards the question in which stage of proceedings a friendly settlement judgment may be reached in the framework of the pilot-judgment procedure, the Court’s course of action is based on settled case-law and the Convention. As a specific of friendly settlement judgments reached after pilot judgments, the Court was of the opinion that it may only accept a friendly settlement if, as a part of the settlement, the respondent State had also focused on general remedial measures aimed at resolving the systemic problem at the basis of the “pilot”-application. The Court based this approach on the requirement, stipulated in Article 39 § 1, that friendly

568 Van Dijk and others, Theory and Practice 222. 569 Rule 75 § 1 of the Rules of Court stipulates that, where the Court finds that there has been a violation of the Convention, it shall give in the same judgment a ruling on the application of Article 41, except the question is not ready for decision. According to § 4, if the Court is informed that an agreement has been reached between the injured party and the Contracting Party liable—which apparently means following a judgment finding a violation—, it shall verify the equitable nature of the agreement, and, where it finds the agreement to be equitable, strike the case out of the list. Likewise Meyer-Ladewig, Menschenrechtskonvention 361. 570 For instance Feldbrugge v The Netherlands App no 8562/79 (ECtHR, 29 May 1986) 3rd operative provision; Kostovski v The Netherlands App no 11454/85 (ECtHR, 20 November 1989) 2nd operative provision; Vogt v Germany App no 17851/91 (ECtHR, 26 September 1995) 6th operative provision; Loizidou v Turkey App no 15318/89 (ECtHR, 16 September 1996) 10th operative provision; Iatridis v Greece App no 31107/96 (ECtHR, 25 March 1999) 6th operative provision; The former King of Greece and Others v Greece App no 25701/94 (ECtHR, 23 November 2000) 3rd operative provision.



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settlements may only be accepted by the Court if they are reached on the basis of respect for human rights as defined in the Convention.571 The Court’s interpretation of the notion “respect for human rights” correlates with the case-law of the Commission and with opinions in legal doctrine: The Commission repeatedly took into consideration the general interest when deciding on a friendly settlement.572 In the case of Peyer the Commission noted that the respondent State had made a change in domestic legislation relevant for the case under consideration; as regards “questions of general interest raised in the present case, the Commission took note of the above legislative amendment.”573 In legal doctrine it is argued that in case a violation of the Convention was prompted by legislation or an administrative practice which was incompatible with the Convention, the Court was not to accept a friendly settlement which solely remedied the individual applicant and left aside general remedial measures. This followed from the notion of respect for human rights and from the “objective” character of the procedure provided for in the Convention.574 Therefore, the Court’s approach has some basis in earlier case-law and in legal doctrine. Still, as far as can be seen, the Court had never explicitly applied its wide interpretation of the notion “respect for human rights” before the first pilot judgment. True, on several instances, friendly settlements also dealt with measures beyond the individual applicant’s own interests, for instance when the respondent State undertook, after the enforced disappearance of the applicant’s father, to issue appropriate instructions and to adopt all necessary measures with a view to ensuring that all deprivations of liberty were fully and accurately recorded by the authorities, and that effective investigations into alleged disappearances were carried out in

571 Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005) para 37; Hutten-Czapska v Poland (friendly settlement) App no 35014/97 (ECtHR, 28 April 2008) para 35. 572 Peyer v Switzerland App no 7397/76 (Commission Decision, 8 March 1979); Giama v Belgium App no 7612/76 (Commission Decision, 17 July 1980); Kiss, ‘Conciliation’ 709 et seq. 573 Peyer v Switzerland App no 7397/76 (Commission Decision, 8 March 1979). 574 Grabenwarter, Pabel, Menschenrechtskonvention 87; Van Dijk and others, Theory and Practice 224. With reference to an objective character of the individual complaints procedure, it is argued that this procedure was not only designed to provide individuals with redress in case of a violation of their Convention rights, but that it also aimed at upholding a general standard of human rights protection. Cf. as to this aspect Chapter 16.3.3 (p 120), where the objective character of the individual complaints procedure was already invoked as an argument speaking in favour of the Court’s focus on systemic human rights problems in proceedings following individual applications being in conformity with the Convention.

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accordance with their obligations under the Convention.575 However, in these cases the Court merely stated generally that it was satisfied that the settlement was based on respect for human rights as defined in the Convention or its Protocols,576 without indicating the relevance of the general measures taken, and without saying if it would not have approved the friendly settlement if the respondent State had only taken individual measures of redress. From this it certainly only follows that the Court has never explicitly stated that the notion of “respect for human rights” also demanded that general remedial measures were to be implemented in case a violation was caused by problems in the domestic legal structures of the respondent State; however, it does not follow that this point of view was to be discarded. In fact, several arguments speak in support of the Court’s course of action: On the one hand, the Contracting States have undertaken to secure to everyone the rights enshrined in the Convention in Article 1 thereof, which includes an obligation to adjust the domestic legal order to the Convention;577 and to take general remedial measures following a violation of the Convention in an individual case—even without specific or explicit findings of the Court in that regard.578 If the Court takes this obligation into consideration, it furthers Convention compliance, an approach which can be based on principles of an effective interpretation of treaty provisions which allow more than one possible interpretation—in this case: the notion of “respect for human rights” in Article 39.579 On the other hand, according to Article 19, the Court has to ensure the observance of these obligations; the proceedings before the Court also serve an “objective” purpose of upholding a general standard of human rights 575 Aydın v Turkey App nos 28293/95 and others (ECtHR, 10 July 2001) para 13; cf. also N.Ö. v Turkey App no 33234/96 (ECtHR, 17 October 2002) para 38 (§ 1 of the friendly settlement: “It is noted in this connection that new legal and administrative measures have been adopted which have resulted in a reduction in the occurrence of deaths in circumstances similar to those of the instant application”); cf. also Bulus v Sweden App no 9330/81 (Commission Decision, 8 December 1984) para 16 (§ 3 of the friendly settlement: “As regards the question of a remedy on the enforcement stage of an expulsion order, the Government have appointed a Commissioner to deal with this matter. … the Commissioner shall analyse closely such demands for changes of the regulations … he is to propose such new rules for which the analysis may give cause.”). 576 Aydın v Turkey App nos 28293/95 and others (ECtHR, 10 July 2001) para 15; N.Ö. v Turkey App no 33234/96 (ECtHR, 17 October 2002) para 40; cf. also Bulus v Sweden App no 9330/81 (Commission Decision, 8 December 1984) para 18. 577 Cf. Chapter 12.2 (p 58). 578 Cf. Chapter 13.3.4 (p 76). 579 Bernhardt, Auslegung 93 et seq; Weiß, Kompetenzlehre 369; Verdross, Simma, Völkerrecht 494; cf. Chapter 17.4.3.2 (p 172).



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protection.580 Indeed, it would be contrary to the Contracting States’ obligation to comprehensively implement the Convention when a friendly settlement judgment was to be accepted—and proceedings to be concluded—if it only provided for individual redress, although there was a structural human rights problem present. This would imply that the Contracting States could settle human rights problems which are rooted in their domestic legal structures by simply paying off individual applicants being affected by these problems.581 Also according to Rule 61 of the Rules of Court, when adopting a pilot judgment the Court may reserve the question of just satisfaction, either in whole or in part, pending the adoption by the respondent Contracting Party of the individual and general measures specified in the pilot judgment. However, this may only be seen as an indication that the Court considered this course of action to be in conformity with the Convention. Since powers of the Court may only derive from the Convention, Rule 61 itself may not concede powers to the Court.582 In the light of the foregoing, it is to be concluded that the notion of “respect for human rights as defined in the Convention” in Article 39 initially constitutes a suitable basis for the Court’s approach of taking into consideration general remedial measures envisaged or already taken by a Contracting State following a pilot judgment in friendly settlement judgments. However, by this finding only the first step of examination is concluded. In a subsequent step, it is to be asked if exclusive competences of the Committee to supervise the execution of judgments of the Court are opposed to the above interpretation of Article 39 as empowering the Court to focus on general remedial measures in friendly settlement judgments. If exclusive powers of the Committee exist in that regard, Article 39 would have to be interpreted narrowly, namely as excluding respective powers of the Court. 18.3.2 Relation to the Committee’s Powers Acting on the above conclusion that Article 39 may be interpreted as empowering the Court to take into consideration general remedial measures when assessing a friendly settlement reached between the parties after a judgment finding a violation, there might be an overlap of 580 Cf. Chapter 16.3.3 (p 120). 581 Cf. again Grabenwarter, Pabel, Menschenrechtskonvention 87. 582 Chapter 17.4.5 (p 181).

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competences between the Court and the Committee when supervising the execution of a judgment: On the one hand, the Court would assess general remedial measures envisaged or already taken since the delivery of the judgment in order to assess whether the friendly settlement was reached on the basis of respect for human rights or not; on the other hand, the execution of the same judgment would have to be supervised by the Committee according to Article 46 § 2, which would also involve an assessment of (general) remedial measures taken by the respondent State.583 Basically it is to be stated that, since there exists a judgment of the Court finding a violation of the Convention in those cases, the supervision of the execution of this judgment is undoubtedly within the Committee’s competences under Article 46 § 2.584 It is to be clarified if there is also room for such competences of the Court. It is to be noted at the outset that the Court’s powers are not in any case restricted once it has found a violation in a particular case. As the Court held on several occasions, it is empowered to assess a complaint by an applicant although it has found a violation towards that applicant in the same respect already, if the complaint contains “new information” which was not subject of the previous proceedings before the Court.585 However, in the case of friendly settlement judgments, no new information about a violation of the Convention allegedly occurred after the delivery if the pilot judgment was the subject of proceedings. Therefore, if there was a conflict with the Committee’s powers as a result of the Court’s assessment of remedial measures in friendly settlement judgments, it could not be justified with reference to the cited case-law of the Court regarding applications raising “new information” on a previous violation. Apart from that, it is to be highlighted that the question whether the Court may assess remedial measures envisaged or already taken in friendly 583 Cf. Rule 6 § 2 (b) of the ‘Rules of the Committee of Ministers for the supervision of the execution of judgments’; Van Dijk and others, Theory and Practice 308 et seq; likewise Okresek, ‘Umsetzung’ 171. 584 Supervision of execution of a judgment is to be distinguished from the determination which remedial measures are called for in the execution of a judgment. As was concluded above, it cannot be established that this decision fell exclusively to the Committee rather than to the Court (Chapter 17.6, p 225), from which it follows that the Court may rely on empowering provisions in that regard and determine the Contracting States’ remedial obligations in its judgments—at least in case of widespread human rights problems endangering the functioning of the Court. 585 Eg. Mehemi v France App no 53470/99 (ECtHR, 10 April 2003) para 43; Verein gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) App no 32772/02 (ECtHR, 30 June 2009) para 61.



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settlement decisions is not one which became relevant only with the pilotjudgment procedure. It is only with respect to the pilot-judgment procedure that also general remedial measures have shifted into the focus of attention: As was stated above, already before the first pilot judgment was delivered, the Court had reserved the decision on just satisfaction in a multitude of judgments finding a violation, inviting “the Government and the applicant to submit … their written comments on the said question and, in particular, to notify the Court of any agreement reached between them”.586 If the parties subsequently submitted an agreement to the Court in those cases, this agreement had to be assessed by the Court, in particular, it was to be assessed if it had been reached on the basis of respect for human rights,587 and if it was of an equitable nature.588 Since the amount of just satisfaction the applicant is entitled to depends on the circumstances of the case,589 the assessment of an agreement between the parties had to involve the evaluation if the respondent State had committed itself to adequately fulfil its individual remedial obligations deriving from a (judgment finding a) violation of the Convention. In other words, in general, also before the first pilot judgment, an agreement between the parties would only have met the requirements of the Convention if it had afforded to the applicant a sufficient redress. However, the nature and amount of the required redress may only be determined in the light of the circumstances of the case and the remedial obligations deriving from the Convention. Therefore, also when assessing a friendly settlement prior to the first pilot judgment, the Court had to assess which remedial obligations followed from a case, and in a subsequent step, it had to assess if the respondent State met this remedial obligations with the measures of redress envisaged in the friendly settlement—at least approximately, since Rule 75 of the Rules of Court only speaks of friendly settlements of an equitable nature. It follows that, before the first pilot judgment, it was already common practice that the Court induced the parties to its proceedings to reach friendly settlements. If they did so, this entailed the Court’s duty to assess any such agreement reached between the parties in order to assess if it complied with the

586 Cf. for instance Feldbrugge v The Netherlands App no 8562/79 (ECtHR, 29 May 1986) 3rd operative provision, and the judgments cited in n 570 (p 242). 587 Cf. Article 38 (before the entry into force of Protocol No 14); Article 39 of the current version of the Convention. 588 Rule 75 § 4 of the Rules of Court. 589 Cf. Meyer-Ladewig, Menschenrechtskonvention 371.

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remedial obligations deriving from the judgment. Therefore, also before the first pilot judgment, the Court examined (envisaged) general remedial measures as to their compliance with the respondent State’s remedial obligations deriving from a judgment. This course of action has a legal basis in (current) Article 39 of the Convention and in Rule 75 of the Rules of Court, and is therefore to be considered as being in conformity with the Convention. In the context of the pilot-judgment procedures, all what changed was the Court’s focus on general remedial measures when assessing a submitted friendly settlement. Therefore, the Court only continues, in essence, a settled practice. From the perspective of the Committee’s powers in the execution process, it is insignificant if the Court examines individual or general remedial measures of redress which a Contracting State commits itself to take in a friendly settlement: In both cases it remains for the Committee to supervise the execution of the friendly settlement decision,590 so that it is for the Committee to scrutinize if the respondent State actually implements the remedial actions which it announced in the friendly settlement. The Court’s competences come to an end as soon as it has approved of a friendly settlement; it may not monitor if this settlement is being complied with. Therefore, the Committee is not edged out of the process of supervising the execution of remedial measures a Contracting State takes following a violation of the Convention, but it retains an active role in it—by supervising the execution of the pilot judgment itself according to Article 46 § 2, and by supervising the execution of the friendly settlement according to Article 39 § 4. When Judges Zagrebelsky and Jaeger argue that the Court was not competent to express a view on the consequences of the reforms after a pilot judgment and to give a vague positive assessment, and that this were aspects which rather the Committee could take into consideration in its initial interim resolution,591 it is to be stated that the Committee is not barred from doing so in any way. Besides, in friendly settlements, the examination of general remedial measures may be twofold: On the one hand, general measures may have already been taken at the time of the submission of the friendly settlement to the Court; on the other hand, they may only be envisaged 590 Article 39 § 4; Rule 43 § 3 of the Rules of Court; Meyer-Ladewig, Menschenrechts­ konvention 363. 591 Separate Opinion of Judge Zagrebelsky joined by Judge Jaeger in Hutten-Czapska v Poland (friendly settlement) App no 35014/97 (ECtHR, 28 April 2008).



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for the future. As regards the separation of power between the Court and the Committee it is to be said that, when examining if a Contracting State’s pledge in a friendly settlement to take certain (individual or general) remedial measures in the future would constitute an appropriate response to the finding of a violation in a judgment, the Court does not supervise the execution of a judgment in the narrower sense since there have not yet been concrete acts of execution—they are only projected. Accordingly, if the Court examines if remedial measures (be them individual or also general measures), which a Contracting State commits itself to take in a friendly settlement, are a suitable means in order to execute a (pilot-) judgment, the Court does not encroach upon exclusive powers of the Committee and thus acts in conformity with the Convention. However, the examination of a Contracting State’s pledge to take remedial measures was not the only action of the Court in friendly settlements assessed after pilot judgments. In Broniowski as well as in Hutten-Czapska the Court also took into consideration general remedial measures already taken by the respondent States and assessed if they amounted to a suitable reaction to the pilot judgment.592 In this perspective, the Court’s course of action in friendly settlement proceedings indeed involved the examination of the respondent States’ execution of the pilot judgments. Still, there are significant differences between the Court’s approach and the Committee’s tasks in the execution process: First, the Court applied more lenient examination criteria than a full supervision of the execution of the pilot judgments would have required; it already accepted proposed friendly settlements on the basis that the respondent States had “demonstrated an active commitment” to take measures intended to remedy the systemic defects found by the Court in the pilot judgment.593 The Committee, on the other hand, may only conclude its supervisory functions after having established that the Contracting State concerned has taken all the necessary individual and general measures to abide by the judgment.594

592 Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005) para 39–42; Hutten-Czapska v Poland (friendly settlement) App no 35014/97 (ECtHR, 28 April 2008) para 37–40. 593 Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005) para 42; Hutten-Czapska v Poland (friendly settlement) App no 35014/97 (ECtHR, 28 April 2008) para 43. 594 Rule 17, read in conjunction with Rule 6, of the Rules of the Committee for the Supervision of the Execution of Judgments.

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Secondly, the Court’s participation in the execution process is limited to issuing a decision on the friendly settlement (while the Committee’s competences of supervision are comprehensive in that regard): In friendly settlement decisions the Court may only assess if the respondent State has taken suitable measures, or, more cursory, if the respondent State has demonstrated an active commitment to execute the pilot judgment. If the respondent State has not taken remedial measures, or if no friendly settlement has been submitted at all, the Court cannot but award just satisfaction to the applicant in an own decision; however, it may not take measures urging the respondent State to take the required remedial measures. This is solely the Committee’s task which is, according to Article 46 § 2, responsible to supervise the execution of the pilot judgment. This was also emphasised by the Court in friendly settlement decisions following pilot judgments, where the Court stated that it was for the Committee to evaluate the general measures and their implementation as far as the supervision of the execution of the Court’s pilot judgment was concerned.595 Lastly, as a result of both the Court’s approach of conducting only a cursory examination and the Committee’s remaining competences in the execution process, the Committee is extensively free in examining the whole set of remedial measures taken by a Contracting State following a pilot judgment: The Court only examines if the Contracting State’s measures are a step in the right direction, while it remains for the Committee to examine if the pilot judgment is fully executed. This also derives from the differing focus of the Court’s examination of general measures as compared to the Committee’s focus: The Court only assesses if a friendly settlement is based in respect for human rights, which includes a cursory examination if the respondent State has taken the required general measures; in any case, the Court’s focus is limited to the friendly settlement proposed to it. In contrast, the Committee comprehensively focuses on the full execution of the pilot judgment and not only on a proposed friendly settlement. It follows that the Court’s approach of conducting a cursory examination of remedial measures already taken by the respondent State respects  the Committee’s competences in the execution process and is therefore to be considered as being in conformity with the Convention. Nevertheless, the examination of remedial measures which have already 595 Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005) 42; Hutten-Czapska v Poland (friendly settlement) App no 35014/97 (ECtHR, 28 April 2008) para 43.



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been implemented in friendly settlement decisions596 constitutes a controversial aspect as regards a division of functions between the Court and the Committee.597 Based on this conclusion, the criticism of the Court’s cursory examinations of general measures of implementation in friendly settlement judgments is to be rejected.598 In my opinion, it is indeed the vagueness of the Court’s examination which keeps the relation between the Court and the Committee in balance since, by applying only a cursory examination, the Court does not anticipate the Committee’s own assessment. In addition, no detriment for individual applicants or for the execution of the pilot judgment is to be expected as a result of the Court’s approach: The “pilot”-applicants receive individual redress by way of the friendly settlement, and the redress for other applicants in parallel applications continues to be pending. The Contracting State may not cease its efforts to execute the pilot judgment simply because of the Court’s cursory positive assessment of the development, but it has to proceed to a comprehensive execution of the judgment, which is supervised by the Committee. Therefore, the Court’s approach of contenting itself with an active commitment shown by the respondent State in resolving the systemic problem does not detrimentally affect the implementation of the pilot judgment or individual applicants’ interests. It remains to be noted that in several pilot-judgment procedures the Court did not focus on general remedial measures at all when deciding on the “pilot”-applicant(s) claims for just satisfaction in separate judgments after the pilot judgment or on friendly settlements proposed by the “pilot”applicant and the respondent State.599 In these cases there is apparently no conflict with the Committee’s powers; the Court even highlighted in judgments to which the “pilot”-applicant was party that it left it to the 596 And possibly also a corresponding examination in striking out decisions towards other applicants complaining about similar violations, cf. as to this aspect the following Chapter 19 (p 257). 597 Cf. again the statements cited in Chapter 18.1 (p 238). 598 Judges Zagrebelsky and Jaeger argue that “The Court is not competent (and does not have the necessary knowledge) to express a view in the abstract and in advance on the consequences of the reforms already introduced in Poland and to give a vague positive assessment of a legislative development whose practical application might subsequently be challenged by new applicants.” (Separate Opinion of Judge Zagrebelsky joined by Judge Jaeger in Hutten-Czapska v Poland [friendly settlement] App no 35014/97 [ECtHR, 28 April 2008]). A. Buyse concurs with the Judges in that respect (Buyse, ‘Procedure’ 89). 599 Cf. for instance Lungu v Moldova App no 17911/08 (ECtHR, 6 April 2010) with respect to the pilot judgment in the case of Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009).

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Committee to ensure that the respondent State adopted the necessary measures consistent with the Court’s conclusions in the pilot judgment in accordance with their obligations under the Convention to take the general and/or, if appropriate, individual measures.600 18.4 Relevance of Friendly Settlement Judgments for the Pilot-Judgment Procedure It is to be stated that the Court’s approach of assessing general remedial measures in friendly settlement judgments with the “pilot”-applicant is not to be regarded as being crucial for the success of a pilot-judgment procedure since these decisions only concern a single applicant. Considering that the pilot-judgment procedure intends to deal effectively with a large number of similar applications which burden the Court,601 (friendly settlement-) judgments which remove only single applications from the Court’s list of cases are in fact negligible. Decisions of the Court to strike similar applications out of its list of cases according to Article 37 § 1 (b) are of greater importance because these applications burden the Court’s docket, and because they are, beside potential future applications, the reason for the pilot-judgment procedure to be applied at all.602 In comparison, the “pilot”-applicant’s case, taken for itself, is insignificant as regards preserving the future effectiveness of the Court and is thus negligible for the pilot-judgment procedure. While the Court indeed has to examine the respondent State’s measures of implementation in striking out-decisions towards other (i.e. “parallel”-) applicants, since these applicants are sent back to the domestic level and invited to resort to domestic remedies,603 in friendly settlement judgments towards the “pilot”-applicant the purpose of the pilot-judgment procedure would not be impaired if the Court confined its attention to the sphere of the individual applicant, thus if it dispensed with examining general remedial measures.

600 Cf. with respect to the Olaru-pilot-judgment procedure Gusan v Moldova App no 22539/05 (ECtHR, 28 September 2010) para 15; Olaru v Moldova App no 476/07 (ECtHR, 12 October 2010) para 13. 601 Cf. for instance Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 193; Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005) para 35. 602 Cf. Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 127 et seq. and 133, where the Court refers to a large number of applications already pending. 603 Cf. Chapter 19 (p 257).



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Considering this minor relevance of an assessment of general remedial measures in friendly settlement judgments on the one hand, and the doubts as to the conformity of this approach with the Convention in the light of the division of functions between the Court and the Committee on the other hand, the Court should aim at refraining from assessing general remedial measures in friendly settlement judgments. To that end, two approaches seem to be available: First, the Court could confine its attention to individual measures of redress towards the (pilot-) applicant while leaving out general remedial measures in judgments on friendly settlements reached after pilot judgments; secondly, the Court could avoid deciding on friendly settlements altogether by already deciding on the question of just satisfaction for the pilot applicant in the pilot judgment, so that no friendly settlement would be reached at all (which would have to be assessed also in the light of required general measures by the Court). As regards the first approach—focusing exclusively on individual remedial measures in judgments on friendly settlements—, it is to be noted that the Court appears not to have considered it mandatory to include general remedial measures in its assessment of the friendly settlement between the “pilot”-applicant and the respondent State. In its judgments on these friendly settlements, the Court stated that it could not be ruled out that even before any, or any adequate, general measures had been adopted by the respondent State in the execution of a pilot judgment on the merits, the Court might be led to give a judgment striking out the “pilot” application on the basis of a friendly settlement or awarding just satisfaction to the applicant.604 It would only be “evidently desirable” that individual and general redress should go hand in hand;605 in these circumstances, the Court would have regard not only to the applicant’s individual situation but also to measures aimed at resolving the underlying general defect.606 Therefore, the Court made clear that neither it had to await general remedial measures before deciding on just satisfaction towards the “pilot”-applicant, nor that it was absolutely mandatory that individual and 604 Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005) para 36; Hutten-Czapska v Poland (friendly settlement) App no 35014/97 (ECtHR, 28 April 2008) para 34. 605 Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005) para 36; Hutten-Czapska v Poland (friendly settlement) App no 35014/97 (ECtHR, 28 April 2008) para 34. 606 Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005) para 37; Hutten-Czapska v Poland (friendly settlement) App no 35014/97 (ECtHR, 28 April 2008) para 35.

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general redress would go hand in hand. Accordingly, in several judgments  on friendly settlements reached after pilot-judgments, the Court focused exclusively on individual remedial measures without commenting at all on the wider implications of the pilot judgment and without even mentioning the existence of a systemic problem in the case under consideration.607 However, as was stated above, the Court based its approach of assessing general remedial measures in friendly settlements between a Contracting State and an individual applicant on Article 39 § 1 (and the notion of “respect for human rights” stipulated therein)—which is basically accurate.608 However, from this interpretation of Article 39 it follows that it is not within the Court’s discretion whether or not to take also general remedial measures into consideration when deciding on friendly settlements following pilot judgments, but that it constitutes a duty of the Court: According to Article 39, the Court may only accept friendly settlements if they are on the basis of respect for human rights, which may only be assumed, according to the Court’s interpretation of Article 39, if also general remedial measures have been taken if this was required in the light of the violation.609 Accordingly, it is not within the Court’s discretion to confine its attention to individual measures of redress when assessing friendly settlements between a Contracting State and a (pilot-) applicant. Therefore, when proceeding on the Court’s interpretation of Article 39, the question as to the conformity of the Court’s approach with the division of functions between the Court and the Committee may not be avoided by focusing exclusively on individual measures. Nevertheless, in line with the second approach as formulated above, the Court may avoid these questions as to the conformity of its assessment of general measures with the Convention already at an earlier stage, namely by seeking not to reserve the question on just satisfaction (with a view to a friendly settlement reached between the parties), but by deciding on just satisfaction in the pilot judgment itself. In this case, the Court would not have to decide on a friendly settlement, and, according to its interpretation of Article 39, it would not be required by the Convention to

607 For instance Lungu v Moldova App no 17911/08 (ECtHR, 6 April 2010) with respect to the pilot judgment in the case of Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009). 608 Cf. Chapter 18.3.1 (p 242). 609 Cf. Grabenwarter, Pabel, Menschenrechtskonvention 87; Van Dijk and others, Theory and Practice 224; cf. also Frowein, Peukert, Menschenrechtskonvention 531.



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examine the general remedial measures taken by the respondent State in the meantime. Accordingly, in the majority of the pilot judgments, the Court already decided on the applicant’s claims for just satisfaction in the pilot judgment and thus avoided the present problem.610 Pilot judgments which reserved the question on just satisfaction constitute a clear minority.611 True, in those pilot judgments in which it reserved the question as to just satisfaction, the Court did so because this question was not ready for decision.612 18.5 Interim Conclusion Following its pilot judgments the Court examined, in judgments on friendly settlements reached between the “pilot”-applicant and the respondent State, assurances of the respondent State to take general remedial measures as well as general measures already taken by the State concerned. Article 39 is a suitable basis for the Court’s approach of taking into consideration also general remedial measures when deciding on friendly settlements. As regards the division of functions between the Court and the Committee, it is to be concluded that the Court’s examination of envisaged general measures is not in conflict with the Committee’s competences since it does not restrict or anticipate the Committee’s assessment. The Court’s assessment of measures already taken is in a more tensed relation with the Committee’s powers since the Court indeed examines already implemented measures of execution. However, when examining already implemented measures, the Court contented itself 610 Lukenda v Slovenia App no 23032/02 (ECtHR, 6 October 2005) 6th and 7th operative provision; Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) 9th and 10th operative provision; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) 8th and 9th operative provision; Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) 6th and 7th operative provision; Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) 6th and 7th operative provision; Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) 7th and 8th operative provision; Finger v Bulgaria App no 37346/05 (ECtHR, 10 May 2011) 6th and 7th operative provision; Dimitrov and Hamanov v Bulgaria App nos 48059/06, 2708/09 (ECtHR, 10 May 2011) 7th and 8th operative provision. 611 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004); Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006); Olaru and Others v Moldova App nos 476/ 07 and others (ECtHR, 28 July 2009) 7th operative provision. Likewise Breuer, ‘Piloturteilstechnik’ 7. 612 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 198 and 5th operative provision; Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 247 and 5th operative provision.

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with examining if the respondent State had demonstrated an active commitment to take the required reforms, which leads to the conclusion that also the Court’s assessment of general measures already taken is not in conflict with the division of functions under the Convention. In any case, since the examination of general remedial measures in judgments on friendly settlements with the “pilot”-applicant is dispensable for the functioning of the pilot-judgment procedure, the Court should confine its attention in judgments on friendly settlements on individual measures of redress towards the (pilot-) applicant, or it should seek to decide on the “pilot”-applicant’s claims for satisfaction in the pilot judgment already.

CHAPTER NINTEEN

ADJOURNMENT AND STRIKING OUT OF APPLICATIONS 19.1 Introduction In several pilot judgments the Court adjourned the consideration of applications stemming from the same systemic problems while awaiting a domestic remedy to be installed by the respondent State. If the Court was later satisfied that a newly introduced domestic remedy was capable of providing applicants affected by the same systemic problem with adequate and sufficient redress, the Court struck these applicants’ complaints out of its list of cases because they had now the chance to resubmit their grievances with the new domestic remedy.613 In the following, it shall be clarified how the Court proceeded when it adjourned the consideration of similar applications and later struck those applications out of its list (Chapter 19.2). Then, the relevance of the adjournment and striking out of similar applications shall be examined (Chapter 19.3). Thereupon, it is to be asked if there is a legal basis for adjourning similar applications (Chapter 19.4) and for striking applications out of the Court’s list in case a domestic remedy has been installed (Chapter 19.5); in other words, if the Court’s course of action is in conformity with the Convention. Finally, it shall be asked if the Court could preserve the positive effects of the pilot-judgment procedure on the effectiveness of the Strasbourg system if it abstained from adjournment (Chapter 19.6). 19.2 The Court’s Practice in Its Pilot-Judgment Procedures As was highlighted above,614 it is a controversial question in legal doctrine if the adjournment of similar “clone”-applications constitutes a crucial element of the pilot-judgment procedure.615 The Court has referred to the 613 This course of action was first practised before the first pilot judgment in the length of proceedings-cases against Italy, cf. Chapter 4.1 (p 16). 614 Chapter 9.3 (p 45). 615 Considering adjournment as a key element: Popović, ‘Pilot judgments’ 355 et seq; Wildhaber, ‘Consequences’ 61; Fyrnys, ‘Pilot Judgments’ 1257; Breuer, ‘Individualbeschwerde’

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adjournment of proceedings in its pilot-judgment procedures in a flexible way, reaching from no adjournment at all616 to the adjournment of all pending and potential future applications.617 In other pilot judgments the Court differentiated between new applications lodged with it after the delivery of the pilot judgment, and applications lodged before the delivery of the pilot judgment: The Court adjourned applications lodged after the pilot judgments with a view to requesting the applicants concerned to resubmit their grievances to a newly established domestic remedy. In case of applications lodged before the delivery of the pilot judgments, the Court directed the respondent States to directly grant redress to the applicants618—thus, without requiring them to resort to a domestic remedy— and likewise adjourned the consideration of those cases in order to wait for the respondent State to grant redress.619 In Ananyev and Others the Court emphasised that “that adjournment is a possibility rather than an obligation, as clearly shown by the inclusion of the words “as appropriate” in the text of Rule 61 § 6 and the variety of approaches used in the previous pilot-case judgments”.620 The Court’s practice of adjourning the consideration of similar cases appears to be closely linked with its practice of striking similar cases out of 121; Judge Zagrebelsky also highlights the adjournment of similar proceedings as an important element: Partly Dissenting Opinion to Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006). Assuming that adjournment was not crucial: Garlicki, ‘Broniowski’ 185 and 190; Leach, Hardman, Stephenson, ‘Pilot Judgment Procedure’ 351; John Darcy, ‘Pilot judgments from the perspective of the Court and possible elements of the pilot judgment procedure which could be drafted’ in Pilot Judgment Procedure in the European Court of Human Rights. 3rd Informal Seminar for Government Agents and other Institutions (Kontrast 2009) 36, 39. Cf. Chapter 9.3 (p 45). 616 Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) para 75; Finger v Bulgaria App no 37346/05 (ECtHR, 10 May 2011) para 135; Dimitrov and Hamanov v Bulgaria App nos 48059/06, 2708/09 (ECtHR, 10 May 2011) para 133. 617 Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 121 et seq. Cf. also Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 198; Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 247; Maria Atanasiu and Others v Romania App nos 30767/05, 33800/06 (ECtHR, 12 October 2010) 241. 618 In the Court’s view, such redress may be achieved through implementation proprio motu of an effective domestic remedy by the authorities in those cases or through ad hoc solutions such as friendly settlements with the applicants or unilateral remedial offers of redress in line with the Convention requirements; cf. for instance Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) para 61. 619 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 142 et seq; Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) para 59 et seq; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 95 et seq; Breuer, ‘Piloturteilstechnik’ 8. 620 Ananyev and Others v Russia App nos 42525/07, 60800/08 (ECtHR, 10 January 2012) para 235.



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its list in case a remedy has been installed on the domestic level which provides persons concerned by a systemic problem with adequate redress: In its striking out decisions, the Court examined the general measures implemented by the respective Contracting State and, if it was satisfied that the applicants’ matter had been resolved with due respect for human rights as defined in the Convention according to Article 37 § 1 (b),621 struck their applications out of its list of cases.622 A decision delivered after the “Broniowski”-pilot-judgment may be cited exemplary: In Wolkenberg the Court concluded that [w]hile, by virtue of Article 46 of the Convention, it will be for the Committee of Ministers to evaluate the general measures adopted by the Polish State and their implementation as far as the supervision of the execution of the Court’s merits and friendly-settlement judgments in the Broniowski case is concerned, the Court, in exercising its own power to decide whether the matter involved in the present case and the remaining Bug River cases “has been resolved” and whether to strike the case out of its list under Article 37 § 1(b) of the Convention, has been satisfied that the procedures under the July 2005 Act provided the applicants and other Bug River claimants with relief at domestic level that makes its further examination of the present application and of similar applications no longer justified. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.623

In the following, the relevance of the Court’s practice of adjourning the consideration of similar applications and of striking these applications out of its list for the pilot-judgment procedure and its interrelation shall be examined. 19.3 Relevance for the Pilot-Judgment Procedure Two purposes of the pilot-judgment procedure may be identified:624 First, the Court aims at inducing the Contracting States to resolve systemic 621 Cf. Chapter 19.5.1 (p 272) as regards Article 37 § 1 (b) as a legal basis for the Court’s striking out decisions. 622 With respect to the Broniowski-pilot judgment procedure: Wolkenberg and Others v Poland App no 50003/99 (ECtHR, 4 December 2007) para 34–36 and 77; Witkowska-Toboła v Poland App no 11208/02 (ECtHR, 4 December 2007) para 79. With respect to the HuttenCzapska-pilot-judgment procedure: The Association of Real Property Owners in Łódź v Poland App no 3485/02 (ECtHR, 8 March 2011) para 88–90. 623 Wolkenberg and Others v Poland App no 50003/99 (ECtHR, 4 December 2007) para 77. 624 Cf. Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 117, where the Court speaks of a “dual nature” of the pilot-judgment

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human rights problems, causing repetitive applications and burdening the Court’s docket, by identifying general measures which the respondent State is required to take following a pilot judgment in order to resolve the systemic problem as such, i.e. at its roots,625 or at least to install a domestic remedy which is capable of providing redress for persons concerned by the systemic problem, so that they are not forced to resort to the Court.626 In that regard, the Contracting States are requested to adjust their domestic legal order to the requirements of the Convention, so that no new instances of violation of the Convention stemming from the same problem, which would burden the Court, are to be expected. Secondly, the intention behind the pilot-judgment procedure is also to induce the respondent State to resolve large numbers of present and future individual cases stemming from the same structural problem at the domestic level, so that the Court does not have to decide on those similar applications in a series of cases.627 When a pilot judgment is delivered, the systemic problem under consideration usually has already lead to applications pending before the Court, and it will lead to new applications being lodged with the Court until the problem will have been resolved by the respondent State. Therefore, the Court aims at disposing of as many (future) applications as possible, since a disposal of these applications would presently ease the burden on the Court’s docket. This second aim— disposing of (present or future) applications—exists besides and in addition to the first aim of adjusting domestic legal structures to the Convention. It suggests itself that pilot judgments will also have a positive effect on the functioning of the Strasbourg system if the Court focuses solely on the first purpose of the pilot-judgment procedure, namely on inducing the Contracting States to resolve systemic problems by fully implementing the Convention or to install a domestic remedy. Assuming that the Contracting State concerned will accelerate its efforts to resolve a systemic problem after a pilot judgment has highlighted its existence and has determined procedure: “on the one hand, it is intended to assist respondent States in remedying an identified defect arising from a widespread or systemic problem; on the other, it aims to ensure the effective treatment of follow-up cases”. 625 Cf. for instance Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 110–115 and 6th operative provision. 626 Cf. for instance Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 138–141 and 6th operative provision. 627 Cf. for instance Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 127.



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remedial measures, there will be no more repetitive applications being caused by this problem after the problem has been resolved, be it only by installing a domestic remedy. This course of action will already ease the burden on the Court’s docket for the future, and it will also further Convention compliance. Therefore, contributing to resolving a deficiency in the implementation of the Convention in a Contracting State is the centrepiece of the pilot-judgment procedure. This implies that pilot-judgment procedures serve as well a purpose without the adjournment and striking out of similar applications—without these elements, pilot judgments would simply aim at inducing the respondent State to fully adjust its domestic legal order to the Convention. Indeed, the Court would have to deal with pending or future applications on a case by case-basis; however, once a systemic problem has been resolved, it will not lead to any more new violations. The Court’s burden would then be limited to working off all pending applications. Therefore, the second aspect of the pilot-judgment procedure—the Court’s practice of adjourning the consideration of similar applications and of striking them out of its list if a domestic remedy has been installed—is not indispensable for the pilot-judgment procedure. Accordingly, in several pilot judgments the Court solely directed the respondent State to take general remedial measures (aiming at a systemic problem being resolved at its roots or at a domestic remedy being installed), whereas it did not adjourn the consideration of similar applications or struck such applications out of its list.628 However, in other pilot-judgment procedures the Court did adjourn the consideration of similar applications and struck them out of its list if a domestic remedy had become available. Therefore, it shall be examined in the following if there is a legal basis in the Convention for this course of action. Beforehand, it is to be noted that adjourning similar applications is only purposeful if it is done with a view to striking those applications out of the Court’s list if a domestic remedy has been installed by the respondent State which provides the applicants concerned with sufficient redress.

628 Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) para 75; Finger v Bulgaria App no 37346/05 (ECtHR, 10 May 2011) para 135; Dimitrov and Hamanov v Bulgaria App nos 48059/06, 2708/09 (ECtHR, 10 May 2011) para 133. Cf. Fyrnys, ‘Pilot Judgments’ 1257 (footnote 149), who notes (with reference to Leach and Others, Responding) that the adjournment of proceedings was a matter of discretion for the Court depending on all relevant circumstances.

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The adjournment of the consideration of similar cases would be to no avail if the Court did not aim at striking those applications out of its list as soon as a domestic remedy was available. Nevertheless, adjournment and striking out of similar applications shall be examined separately in the following. Thus, in Chapter 19.4 only the temporal aspect of the Court’s course of action shall be examined, i.e. if there is a legal basis in the Convention for the Court’s adjournment of the consideration of applications (Chapter 19.4.1), and if a delay in the consideration of cases is consistent with the Court’s duty to decide on applications as it follows especially from the right to individual application (Chapter 19.4.2). 19.4 Legal Basis for the Adjournment of Parallel Applications 19.4.1 Indications for a Legal Basis to Adjourn As has repeatedly been highlighted, the competences of organs of international organizations are limited to those conferred to them by (the signatories of) the founding treaties, including the amendments to them.629 Accordingly, the Court has only those powers and competences which derive from the Convention and the Additional Protocols to it,630 which makes it necessary to ascertain a legal basis for the Court’s approach of adjourning the consideration of applications stemming from the same systemic problem. The Convention itself neither contains any explicit legal basis for an adjournment of applications, nor does it stipulate any order in which applications are to be considered, nor does it determine any time period within which applications have to be decided on. It is merely stipulated that the Court shall examine the cases brought before it (Article 38), and that the Court shall afford just satisfaction if it finds that there has been a violation of the Convention (Article 41). There are no further indications as to the time frame or the order (with)in which these steps have to be conducted. Initially, the Rules of Court are more enlightening in that regard: Rule 41 specifies that in “determining the order in which cases are to be dealt with, the Court shall have regard to the importance and urgency of the issues raised on the basis of criteria fixed by it. The Chamber, or its President, 629 Cf. Klein, Schmahl, ‘Organisationen’ 351; Weiß, Kompetenzlehre 358 with further reference. 630 For instance Breuer, ‘Abhilfemaßnahmen’ 259.



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may, however, derogate from these criteria so as to give priority to a particular application.” Thus, Rule 41 provides for dealing with cases in priority of others; apart from that, the consideration of cases shall be ranked in accordance with their importance or urgency. However, Rule 41 does not provide for a postponement of the consideration of cases. According to Rule 61, which deals with the pilot-judgment procedure, the Court may “as appropriate … adjourn the examination of all similar applications pending the adoption of the remedial measures required by virtue of the operative provisions of the pilot judgment.” This stipulation is clear; though it does not dispense from identifying a legal basis for the adjournment of applications in the Convention: Again it is to be said that competences of the Court may only be established by Convention provisions. True, the Court is empowered by Article 25 to adopt the Rules of Court; however, it is to be assumed that the Court must not go beyond what is stipulated by the Convention in terms of the Court’s powers and the Contracting States’ obligations.631 Therefore, the Court may not establish powers which have no legal basis in the Convention by way of its Rules of Court. Again, no explicit legal basis exists for the adjournment of proceedings in the Convention. On the other hand, no Convention provision explicitly rules out the adjournment of proceedings. Considering this, it is to be asked if existing Convention provisions nevertheless leave any room for interpreting them as empowering the Court to adjourn the consideration of applications. In addition, if such an interpretation was possible, it could be asked if it would further the object and purpose of the Convention, which have been described, based on the preamble, as the maintenance and further realization of human rights632 and as the effective protection of the rights enshrined in the Convention.633 If Convention provisions leave room for more than one interpretation, an interpretation which benefits the object and purpose of the Convention is to be given preference.634 631 Cf. in general Weiß, Kompetenzlehre 358. 632 Matscher, ‘Interpretation’ 66; Salah v the Netherlands App no 8196/02 (ECtHR, 6 July 2006) para 69. 633 Grabenwarter, Pabel, Menschenrechtskonvention 35 et seq; cf. also Mamatkulov and Askarov v Turkey App nos 46827/99, 46951/99 (ECtHR, 4 February 2005) para 123, where the Court states that the Convention is to be interpreted “in accordance with the principle of effectiveness”. 634 Cf. as to an interpretation of international treaties in the light of their object and purpose Article 31 of the Vienna Convention; Villiger, Vienna Convention 427 et seq; Herdegen, ‘Interpretation’ para 30; Bernhardt, Auslegung 93 et seq; Weiß, Kompetenzlehre 369; Verdross, Simma, Völkerrecht 494; cf. also ICJ, Chorzów (Jurisdiction) 25; cf. Chapter 17.4.3.2 (p 172).

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At this point it is to be recalled that the adjournment of the consideration of applications stemming from the same systemic problem is inextricably linked with the striking out of those applications once a domestic remedy has been installed.635 This implies that, in fact, the question if the adjournment of proceedings furthers the object and purpose of the Convention has instead to be phrased as the question if the adjournment of the consideration of applications with a view to striking these applications out of the Court’s list will further the object and purpose of the Convention. When ascertaining if a Convention provision may be interpreted as empowering the Court to adjourn proceedings, Article 38 may be relevant again—which succinctly stipulates that the Court “shall examine the case”. Considering that Article 38 does not stipulate in which order and within which period of time applications have to be examined, also a postponed examination would be covered by the wording of the provision: Even if the Court adjourns the examination of a case and examines it in a striking out decision once a domestic remedy has been installed by the respondent State, it finally examines the case, as Article 38 demands. Accordingly, from this perspective Article 38 leaves room for interpreting it as not requiring the Court to examine a case at the earliest time possible, but only as requiring it to examine the case at some point in time. Interpreting Article 38 as granting some discretion to the Court as regards the period of time within which it examines applications—in the present context: so that the Court may adjourn the consideration of applications and strike them out of its list subsequently—will also contribute to the effectiveness of the Strasbourg system as a whole: If the Court is relieved from dealing with adjourned cases over the period of adjournment, and if it disposes of them in striking out decisions towards a large number of applicants,636 the overall volume of work of the Court will be reduced, so that other applications will be able to be considered within a shorter time. Therefore, the overall effectiveness of the system will be enhanced by the adjournment of proceedings. The Court will have more resources to focus on applications which raise new questions regarding the interpretation of the Convention—instead of deciding on repetitive applications, the legal questions at the basis of which have already been determined in previous cases stemming from the same systemic problem. 635 Cf. Chapter 19.3 (at p 261) as to the interrelation between the adjournment and the striking out of similar applications. 636 Cf. for instance the Court’s striking out decision in E.G. v Poland App no 50425/99 (ECtHR, 23 September 2008), where the Court struck 176 applications out of its list.



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Accordingly, the Court will have more resources to pursue the aim of the Convention of the maintenance and further realization of human rights, as stipulated in the preamble. In that regard, the Court held in a striking out decision following a pilot judgment: It is also to be recalled that the Court’s principal task under the Convention is, as defined by Article 19 of the Convention, “to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto”. A requirement to deliver, continually, individual decisions in cases where there is no longer any live Convention issue cannot be said to be compatible with this task. Nor does this judicial exercise contribute usefully or in any meaningful way to the strengthening of human rights protection under the Convention …637

Accordingly, from a point of view of interpreting the Convention in a way which furthers its object and purpose, Article 38 leaves some room for being interpreted as empowering the Court to adjourn the consideration of applications with a view to striking those applications out of its list once a domestic remedy has been installed, since this eases the burden on the Court’s docket. However, this interpretation of Article 38 must not be in contradiction with any other Convention provisions. In addition, it is to be ruled out that other possible interpretations of Article 38—speaking against the legitimacy of adjournment—is to be given preference. In that regard, the relevance of the Court’s duty to decide on applications and of the implications of the right to individual application shall be examined in the following. 19.4.2 Duty of the Court to Decide on Applications and the Right to Individual Application The Court’s adjournment of applications may not only be considered acts of conduct (by way of its decision and pronouncement that it adjourned proceedings), but they may also be seen as acts of omission since the Court omitted from dealing with applications (which it adjourned previously). The Court’s adjournment of similar cases—that is to say, its omission to deal with adjourned cases over the period of adjournment—would be in conflict with the Convention if it stipulated duties of the Court to deal with cases as soon as possible. In that regard, it is to be noted that such duties might not only derive from explicit stipulations as such but also from stipulations of competences of an organ: It is assumed that 637 E.G. v Poland App no 50425/99 (ECtHR, 23 September 2008) para 27.

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provisions conceding competences to an organ of an international organization may also create duties of that organ to act as described in that provision, if the provision—i.e. the competences stipulated therein—is sufficiently concrete.638 When examining if there are duties of the Court to process cases, Articles 38 and 41 shift again into the focus: According to 38 and 41, the Court “shall examine the case” and “shall, if necessary, afford just satisfaction to the injured party” in case of a violation of the Convention. These provisions stipulate duties of the Court (“shall”); therefore, according to Article 38 and 41, the Court has to decide on individual applications. In addition, the right to individual application, according to Article 34, which constitutes a centrepiece of the Convention, is to be taken into consideration.639 According to Article 34, the Court “may receive” individual applications from persons which claim to have been a victim of a violation. Also on the basis of Article 34, the Court will be bound to decide on individual applications. Consequently, if the Court did not decide on a given individual application, it would act contrary to the Convention. Certainly, this also applies to repetitive applications, even if the respective question of Convention interpretation raised by those applications has already been decided in previous judgments:640 Repetitive applications also claim violations of the Convention to have occurred and have accordingly to be dealt with by the Court. The fact that applications stemming from the same systemic problem usually raise similar legal questions does not dispense the Court from dealing with them in some way; the Convention does not allow them to be ignored. However, in its pilot-judgment procedures the Court did not fail to decide on individual applications: The Court decided on them in terms of striking them out of its list once a domestic remedy had been installed— at least as far as can be said from already concluded pilot-judgment procedures.641 From this perspective, it could be followed that the Court did not 638 Weiß, Kompetenzlehre 356 et seq. 639 Ohms, ‘Artikel 34 EMRK’ 5; Grabenwarter, Pabel, Menschenrechtskonvention 44; Tomuschat, ‘Rechtsschutz’ 95 et seq; Frowein, Peukert, Menschenrechtskonvention 468; Mamatkulov and Askarov v Turkey App nos 46827/99, 46951/99 (ECtHR, 4 February 2005) para 122. 640 Cf. again the Court’s statement that a requirement to deliver, continually, individual decisions in cases where there is no longer any live Convention issue cannot be said to be compatible with its task: E.G. v Poland App no 50425/99 (ECtHR, 23 September 2008) para 27. 641 Cf. Chapter 19.2 (p 257) as to the Court’s course of action in its pilot-judgment procedures.



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act contrary to its duty to decide on individual applications lodged with it since it decided on them eventually. Nevertheless, the question if there exists a failure of the Court to decide on applications will also have to be considered from a temporal point of view: It is to be assumed that the Court will fail to comply with its duties under the Convention if a decision is delivered beyond any reasonable time frame, although the case was ready for decision and the “next in line” on the Court’s docket.642 An excessive delay in deciding on applications would be in conflict with the right to individual application, as enshrined in Article 34, and with the Court’s duty, according to Article 38, to decide on cases in terms of a denial of justice.643 Such a time frame is obviously not distinctly defined by the Convention, from which it follows that no precise maximum duration of adjournment can be determined. Still, after the examination of the Court’s duty to decide on applications, it is to be stated that Article 38 can be interpreted as empowering the Court to adjourn the consideration of proceedings: This interpretation can be based on the wording of Article 38 and is corroborated by an approach to interpretation which aims at promoting the realization of the Convention’s object and purpose. Article 38 itself—as well as Article 34— only bars the Court from adjourning the consideration of applications for an excessively long period. Although no precise assessment of an appropriate duration of proceedings (and thus of the pilot-judgment procedures conducted so far) is possible, some considerations shall be outlined nevertheless. In that regard, a point of reference may be constituted by the average duration of proceedings following admissible applications,644 an approach which would take into account the overload of the Strasbourg system.645 The average duration would have to be measured with reference to the Court’s priority policy, which differentiates between seven categories of cases which are dealt

642 The need to take the overload of the Court into consideration is also emphasized by Wallace, ‘Pilot Judgment Procedure’ 73. 643 Cf. Gattini, ‘Mass claims’ 283, who speaks of a “denial of justice” the Court would come close to in its pilot-judgment procedures; cf. also Fyrnys, ‘Pilot Judgments’ 1257 et seq. 644 According to data referred to by C. Tomuschat in 2007, an average individual application was not examined before 30 months had passed after the submission of the application with the Court (Tomuschat, ‘Overwhelmed’ 12). Taking into account the increase in pending applications over the last years (cf. the statistics presented in the Court’s ‘Annual Report 2011’ 158), the average duration of proceedings has most likely increased since that time. 645 Cf. as regards this overload Chapter 1 (p 3).

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with in descending priority.646 Cases with low priority will be pending for a longer average time until decision, while high priority cases will be dealt with faster.647 As a rule, applications stemming from a systemic problem will be ascribed low priority and will be dealt with after a longer period of time.648 However, since the duration of proceedings will depend on the circumstances of each case, a reference to an average duration of proceedings would be particularly undetermined, if not to say impossible to apply in practice. When focusing on the Court’s actual practice in its pilot-judgment procedures, it emerges that the Court has so far adjourned proceedings for time periods of up to eighteen months;649 in several judgments proceedings were adjourned for six months or one year.650 In two early pilot judgments the Court adjourned the consideration pending the implementation of the relevant general measures, which should be adopted “within a reasonable time”,651 which is particularly vague. On the one hand, taking into account the overload of the Strasbourg system, time limits of up to eighteen months appear to be justifiable, which would speak in favour of the Court’s adjournment being in conformity with the Convention. On the other hand, from the adjournment of the consideration of applications for a certain time it is not to be followed that those applications are decided on within this period, quite the opposite: Within the adjournment period the Court simply does not deal with 646 European Court of Human Rights, ‘The Court’s Priority Policy’; Wallace, ‘Pilot Judgment Procedure’ 73. 647 Potentially well-founded applications not claiming a violation of Articles 2–4 or 5 § 1 (which the Court identified as core rights) constitute category four (out of seven categories) in the Court’s Priority Policy (n 646); applications raising issues already dealt with in a pilot or leading judgment (repetitive cases) constitute category five, only followed by applications identified as giving rise to a problem of admissibility or which are manifestly inadmissible. 648 Most pilot-judgment procedures concerned rights other than the core rights identified by the Court as leading to a priority examination of applications omplaining about a violation of those rights; cf. n 647. 649 Maria Atanasiu and Others v Romania App nos 30767/05, 33800/06 (ECtHR, 12 October 2010) para 241. 650 Adjournment for six months: Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) 5th operative provision. Adjournment for one year: Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) 7th operative provision; Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) 6th operative provision; Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) 8th operative provision. Adjournment for 18 months: Ananyev and Others v Russia App nos 42525/07, 60800/08 (ECtHR, 10 January 2012). 651 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 198; Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 247.



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those cases; after the expiration of the adjournment period, those applicants whose cases were previously adjourned will basically face the usual delays of the Strasbourg system, unless the Court decides to deal with those cases at a higher priority. Thus, also in case of adjournment periods which are considerably below the average duration of proceedings before the Court, the applicants concerned may experience a considerable delay in the procession of their applications. In addition, the examination of pilot-judgment procedures concluded so far shows that a considerable amount of time lapsed between the delivery of the pilot judgment and the Court’s striking out decisions. In Broniowski the Court struck applications out of its list after more than four years had passed since the delivery of the pilot judgment.652 In HuttenCzapska almost five years passed by between the delivery of the pilot judgment in 2006 and the striking out decision towards 25 applicants in 2011.653 True, not all applications had been pending for that period of time; in the Broniowski pilot-judgment procedure several applications which were struck out in 2008 had only been lodged in the same year when the Court also delivered its striking out decision, so that less than one year went by between the moment these applicants lodged their applications and the Court’s decision on them.654 Nevertheless, in the Broniowski-procedures almost 100 applications which were struck out of the Court’s list in this decision delivered in 2008 had already been lodged before or in 2004, the year the pilot judgment was delivered. Thus, from the delivery of the pilot judgment on, these applicants had to wait four more years just to be struck out of the Court’s list eventually.655 This illustrates that the Court in fact did not care a lot about its self-determined time limitations, notwithstanding the fact that in the pilot-judgment procedures just described the Court only adjourned the consideration pending the adoption of the

652 E.G. v Poland App no 50425/99 (ECtHR, 23 September 2008); the pilot judgment was delivered on 22 June 2004. In two prior striking out decisions, only a negligible number of applications were struck out of the Court’s list: Witkowska-Toboła v Poland App no 11208/02 (ECtHR, 4 December 2007); Wolkenberg and Others v Poland App no 50003/99 (ECtHR, 4 December 2007). 653 The Association of Real Property Owners in Łódź v Poland App no 3485/02 (ECtHR, 8 March 2011). 654 In E.G. v Poland for instance, applications, which had been pending for not even a year, were struck out of the Court’s list, cf. the list of struck out applications annexed to E.G. v Poland App no 50425/99 (ECtHR, 23 September 2008). 655 Cf. as to these figures the list of struck out applications annexed to E.G. v Poland App no 50425/99 (ECtHR, 23 September 2008).

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general remedial measures, which was to be completed by the respondent State within a “reasonable time”.656 However, as was already indicated, this does not mean that all applications which were struck out in one of the cited decisions had already been on the Court’s docket for such a long time: Since the Court struck applications stemming from the same systemic problem out of its list which had been lodged until the striking out decision, each applicant had been waiting for a differently long time until his application was struck out— depending on the date the applicant had lodged his or her complaint. In the follow up decision to the Broniowski-pilot judgment cited above, delivered in 2008, the Court struck applications out of its list which had already been pending for nine years and sent them back to the national level to use a newly installed domestic remedy, while others were not lodged before the year 2008 itself, so that they had to wait not even a year until to be decided on.657 It is inherent in the practice of adjournment of the consideration of applications for a certain period with a view to striking them out jointly that the applicants concerned will have to wait differently long for their applications to be decided on: Applications lodged shortly before the (striking out) decision will be decided on within a shorter period than applications which were lodged shortly after the delivery of the pilot judgment—or even before the delivery of the pilot judgment. Accordingly, the Court’s practice of adjourning the consideration of proceedings had a widely differing effect on applicants, so that it may not be concluded that the duration in all concerned proceedings was excessively long. In addition, an assessment of the duration of proceedings also depends on the facts of each individual case, an examination of which is not the aim of this examination. Apart from these considerations, it is to be followed from the right to individual application that the Court has to aim at keeping the duration of proceedings short by concluding proceedings as swiftly as possible (with due consideration of applications requiring priority treatment,658 of the facts of the individual cases, and of the overload of the Strasbourg system). Otherwise, the right to individual application could be undermined by delaying the consideration of individual complaints.

656 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 198; HuttenCzapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 247. 657 E.G. v Poland App no 50425/99 (ECtHR, 23 September 2008). 658 Cf. as to the Court’s priority policy n 646 (p 268) above.



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In this respect, the Court’s differentiated approach in several pilotjudgment procedures is to be recalled:659 Occasionally the Court adjourned the consideration with a view to requiring the applicants concerned to resubmit their grievances at a domestic remedy only in respect of new applications lodged with the Court after the delivery of the pilot judgment.660 Apart from that, the Court also adjourned the consideration of applications already pending at the time the pilot judgment was delivered; however, as regards those old applications, the Court ordered the Contracting States concerned to grant redress directly, so that the applicants concerned did not have to resort to domestic remedies again.661 By doing so, the Court at least limited the duration of proceedings in the adjourned cases since only future applications were adjourned in order to send them back to the domestic level eventually. This course of action is to be endorsed; however, the Court resorted to it only in a minority of pilotjudgment procedures. In the light of these elaborations, it is to be concluded that the Convention basically empowers the Court to adjourn the consideration of applications while awaiting a domestic remedy to be installed by the respondent State. However, this competence of the Court is limited by its duty to decide on cases brought before it; this follows especially from the right to individual application according to Article 34. This duty is to be interpreted as binding the Court not to delay the consideration of applications for an excessively long period—which may not be determined on the basis of Convention provisions though. In any case, the Court has to aim at keeping the duration of proceedings short. Its approach of limiting the adjournment of applications to those cases which are lodged after the delivery of the pilot judgment is to be endorsed. After the temporal aspect of the Court’s approach to deal with “parallel”cases following pilot judgments has been examined in this Chapter, in the 659 Cf. Chapter 19.2 (p 257) as to the various modes of adjournment the Court has applied. 660 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 143; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 97; Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) para 60. 661 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 144 et seq; Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 98 et seq; Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) para 61. In the Court’s view, such redress may be achieved through implementation proprio motu by the authorities of an effective domestic remedy in these cases or through ad hoc solutions such as friendly settlements with the applicants or unilateral remedial offers of redress in line with the Convention requirements.

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following it shall be analysed if there is a legal basis in the Convention for the second aspect of its approach, namely for striking “parallel”-applications out of its list once a domestic remedy has been installed which provides persons concerned from a systemic problem with sufficient redress. 19.5 Legal Basis for Striking Out Parallel Applications 19.5.1 Article 37 The Court based its striking out decisions on Article 37 § 1 (b), which stipulates that the Court may decide to strike an application out of its list of cases in case the circumstances lead to the conclusion that the matter has been resolved. Therefore, when examining if this course of action is covered by the Convention, it is to be asked, first, how the notion of “the matter has been resolved” in Article 37 § 1 (b) is to be interpreted, and if it covers cases in which a domestic remedy has been installed (Chapter 19.5.1). In a subsequent step, the Court’s examination in its striking out decisions of a domestic remedy which has been installed shall be examined in relation to the Committee’s powers of supervising the execution of judgments according to Article 46 § 2 (Chapter 19.5.2). In order to conclude that the matter has been resolved within the meaning of Article 37 § 1 (b), the Court has repeatedly stated in decisions before the first pilot judgment that it had to examine whether the circumstances complained of directly by the applicant still obtained, and whether the effects of a possible violation of the Convention on account of those circumstances had also been redressed.662 The Court has considered a matter to have been resolved, for instance, in case the applicant and the respondent State had reached a settlement before a decision on the admissibility of the application was issued,663 or in case the applicant had failed to take steps on the domestic level which would have been suitable to resolve the violation of the Convention he had complained of.664 According to J. Frowein and W. Peukert, this provision was introduced to put the Court 662 Pisano v Italy App no 36732/97 (ECtHR, 24 October 2002) para 42, more lately Shevanova v Latvia App no 58822/00 (ECtHR, 7 December 2007) para 45 and Sisojeva and Others v Latvia App no 60654/00 (ECtHR, 15 January 2007) para 97; cf. also Meyer-Ladewig, Menschenrechtskonvention 352. 663 Eg. Dömel v Germany App no 31828/03 (ECtHR, 9 May 2007); cf. Frowein, Peukert, Menschenrechtskonvention 524 et seq. 664 Eg. Shevanova v Latvia App no 58822/00 (ECtHR, 7 December 2007); cf. Frowein, Peukert, Menschenrechtskonvention 524.



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in a position to strike an application out of its list in case the applicant was not ready to withdraw his application, although his or her matter had been resolved.665 The Court has been criticised in legal doctrine for its approach in the pilot-judgment procedures of striking applications out of its list if a remedy has been installed on the domestic level for persons in the applicant’s position; legal commentators referred mostly to the applicant’s endangered interests in that regard.666 On the other hand, the Court’s approach has also (succinctly) been endorsed.667 The Court’s approach is indeed in a tensed relation with the right to individual application, according to Article 34, since applicants are denied a decision on the merits by the Court and are forced to resort again to national remedies. On the other hand, this exactly appears to be the rationale behind Article 37 § 1 (b), which allows admissible applications to be struck out of the Court’s list of cases if the matter has been resolved.668 Nevertheless, the question arises whether a matter may only be considered to be resolved if, at the time of the Court’s decision on this question, the violation of the Convention which the applicant was a victim of has already been remedied, i.e. if the applicant has already received sufficient redress; or if it suffices that the applicant has an effective means at its disposal to apply for redress for the ill-treatment he was a victim of, which implies that the applicant might receive redress only after the Court’s striking out decision—which the Court cannot examine any more though. The latter was the case in the pilot-judgment procedures: The Court struck applications out of its list because it was convinced that the applicants concerned could receive redress on the domestic level669—they had not yet received redress at the time of the striking out decision though. In the Court’s view, it sufficed that the applicants concerned had “reasonable prospects of recovering compensation for damage caused by the systemic violation”.670 However, the Court’s criteria, as developed in cases previous to the first pilot judgment, may be interpreted as requiring a violation to 665 Frowein, Peukert, Menschenrechtskonvention 524. 666 Cf. for instance Buyse, ‘Procedure’ 89: “domestic reforms could stagnate and then parallel applications which have been sent back to the national level are to a certain extent left out in the cold”. 667 Frowein, Peukert, Menschenrechtskonvention 524. 668 Cf. Frowein, Peukert, Menschenrechtskonvention 524. 669 Cf. Wolkenberg and Others v Poland App no 50003/99 (ECtHR, 4 December 2007) para 74. 670 The Association of Real Property Owners in Łódź v Poland App no 3485/02 (ECtHR, 8 March 2011) para 88.

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be already remedied at the time of the Court’s decision to strike to application out of its list: According to the Court’s statements prior to the first pilot judgment, it had to examine whether the circumstances complained of by the applicant “still obtained”, and whether the effects of a possible violation of the Convention on account of those circumstances “have also been redressed”.671 Therefore, the Court’s case-law prior to its pilotjudgment procedure is opposed to its course of action in its striking out decisions. However, in the more recent judgment in the case of Shevanova the Court struck an application out of its list due to the fact that the applicant had failed to resort to means on the domestic level to resolve the violation he had complained of. The Court noted that national authorities had instructed the Minister of the Interior to issue the applicant with a permanent residence permit, and that another authority had issued a letter explaining to the applicant that she could regularise her stay and outlining the procedure to be followed. According to the Court, if the applicant took the corresponding actions she would be able to remain in Latvia legally and permanently,672 which sufficed, in the Court’s view, to strike the applicant’s case out of its list.673 The applicant’s situation in Shevanova significantly resembles that one of the “parallel”-applicants in the pilot-judgment procedures: In both cases, the applicants had not yet received redress at the time of the striking out decision; nevertheless, the Court acted on the assumption that there were means available to them on the domestic level to receive redress. Therefore, the Court’s course of action in the pilotjudgment procedures corresponds with a more recent approach to striking applications out of the Court’s list of cases. In any event, if domestic remedies have newly been introduced, striking applications out of the Court’s list will only be in conformity with the Convention if the Court’s decision is based on thorough knowledge that the new remedy is indeed capable of providing adequate redress—otherwise, the Court cannot be sure that the persons concerned will receive sufficient redress on the domestic level. Only if a sufficient domestic remedy exists, a matter may be considered to have been resolved with respect for human rights, as Article 37 § 1 demands. The required remedy has to 671 Pisano v Italy App no 36732/97 (ECtHR, 24 October 2002) para 42; cf. also MeyerLadewig, Menschenrechtskonvention 352. 672 Shevanova v Latvia App no 58822/00 (ECtHR, 7 December 2007) para 46. 673 Shevanova v Latvia App no 58822/00 (ECtHR, 7 December 2007) 1st operative provision.



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exist already at the time of the striking out decision of the Court, whereas it will not suffice that the Contracting State has announced to install it in the future: Otherwise, as A. Buyse notes, struck out parallel applications, which have been sent back to the national level, would be left out in the cold if domestic reforms stagnated.674 In this context, it is also to be noted that the requirements of the Court’s examination will be higher than in friendly settlement decisions: In decisions striking “pilot”-applications out of its list after a friendly settlement had been reached between the parties, the Court contented itself with examining if the respondent State demonstrated an “active commitment” to resolve a systemic problem.675 As was said above, this lowered standard of examination suffices with respect to the friendly settlement procedure’s intention of upholding respect for human rights, especially due to the fact that the “pilot”-applicant already receives redress in the framework of the friendly settlement, and due to the fact that it respects the Committee’s competences in the supervision process.676 In contrast, in striking out decisions towards “parallel”-applicants the applicants concerned are sent back to the domestic level to claim redress there; they have not yet received redress at the time of the striking out decision, so that the Court has to make sure that the persons concerned will indeed be in a position to receive adequate compensation. Indeed, the Court conducted a thorough examination in its pilotjudgment procedures: In striking out decisions following the pilot judgments in the cases of Broniowski and Hutten-Czapska the Court assessed the reforms in the domestic legal systems as regards the question if persons affected by the systemic problem could receive redress on the domestic level.677 In a striking out decision following the pilot judgment in case of Broniowski the Court concluded that it “has been satisfied that the procedures under the July 2005 Act provided the applicants and other Bug River claimants with relief at domestic level that makes its further examination of the present application and of similar applications no longer justified. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as 674 Buyse, ‘Procedure’ 89. 675 Cf. Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005) para 42. 676 Cf. Chapter 18.3.2 (p 245). 677 Wolkenberg and Others v Poland App no 50003/99 (ECtHR, 4 December 2007) para 60–77; The Association of Real Property Owners in Łódź v Poland App no 3485/02 (ECtHR, 8 March 2011) para 69–89.

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defined in the Convention and its Protocols which require the continued examination of the case.”678 Similarly, in the Hutten-Czapska pilotjudgment procedure the Court held in a striking out decision that “the redress scheme introduced by the 2008 Act offers to the persons affected reasonable prospects of recovering compensation for damage caused by the systemic violation of Article 1 of Protocol No. 1 identified in the pilot case …. Consequently, the authorities have established a mechanism enabling the practical treatment of reparation claims for the Convention breach, which may be regarded as serving the same function as an award under Article 41 of the Convention.”679 Therefore, it appears that the Court indeed aimed at making sure that the remedies available on the domestic level were capable of providing adequate and sufficient redress. However, the Court’s assessment in those decisions was not shared by all actors concerned. In the Broniowski-pilot judgment procedure applicants stated that claims for the payment of full compensation and damages for the respondent State’s past failure to implement the Convention right in question had not been successful in proceedings before the domestic courts until the proceedings on the striking out decision.680 Without it being possible to assess, in the framework of this examination, whether the Court’s assessment of domestic remedies was accurate, the demand of a thorough examination as following from Article 37 § 1 (b) is to be highlighted. Only by making sure that the persons whose applications the Court strikes out of its list will receive adequate redress on the domestic level, the Court will be in a position to conclude that a matter has been resolved. Finally, it is to be stated that the Court’s interpretation of Article 37 § 1 (b), according to which a matter may be regarded as resolved if the applicant can receive adequate redress on the domestic level, appears not to be limited to the pilot-judgment procedure. The question whether applicants have a means at their disposal to receive satisfaction on the domestic level does not depend on a pilot judgment in which the Court highlights a structural problem; neither is it necessary that this means of redress has only been installed after this pilot judgment. All what Article 37 § 1 (b) requires is that a matter has been resolved with respect for human rights 678 Wolkenberg and Others v Poland App no 50003/99 (ECtHR, 4 December 2007) para 77. 679 The Association of Real Property Owners in Łódź v Poland App no 3485/02 (ECtHR, 8 March 2011) para 88. 680 Wolkenberg and Others v Poland App no 50003/99 (ECtHR, 4 December 2007) para 50 and 75.



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as defined in the Convention. Accordingly, in its argumentation on the application of Article 37 § 1 (b) the Court only refers to the fact that applicants complaining about similar violations were, as a result of a newly introduced remedy, in a position to claim redress as would be possible under Article 41 if the Court were to deal with their cases on an individual basis.681 In order to substantiate a striking out decision in the Broniowski pilot-judgment procedure, the Court stated that it “has been satisfied that the procedures under the July 2005 Act provided the applicants and other Bug River claimants with relief at domestic level that makes its further examination of the present application and of similar applications no longer justified.”682 These circumstances alone sufficed for the Court’s decision to strike similar applications out of its list. It follows that, in the light of the Court’s interpretation of Article 37 § 1 (b), systematically striking out applications if the applicants can receive redress on the domestic level would not be inextricably linked with the pilot-judgment procedure, but would be possible in any case a Contracting State installed domestic remedies which applicants could use to gain redress. To sum up, Article 37 § 1 (b) might be regarded as a weak legal basis for striking similar applications out of the Court’s list of cases in case a domestic remedy has been installed since this remedy grants only a chance for applicants to receive redress in the future. In any case, the Court has to make sure that there exist adequate and present means on the domestic level for persons concerned to receive redress for the violation of their Convention rights, in order to arrive at the conclusion that the matters of the “parallel”-applicants have been resolved. The Court has acted in conformity with this requirement in its striking out decisions. However, the question as to competences of the Court to assess measures of implementation taken by a Contracting State following a pilot judgment in decisions striking out “parallel”-applications is not exhaustively answered in the affirmative. Since the Court’s approach in its striking out decisions raises questions as to the relation to the Committee’s competences to supervise the execution of judgments, it is to be examined in the following if the Court, by assessing the remedial measures introduced by the Contracting States since the pilot judgments, interferes with powers which are attributed to the Committee. If this was the case, it could follow that Article 37 was to be interpreted narrowly. 681 Wolkenberg and Others v Poland App no 50003/99 (ECtHR, 4 December 2007) para 75. 682 Wolkenberg and Others v Poland App no 50003/99 (ECtHR, 4 December 2007) para 77.

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19.5.2.1 General Remarks In the pilot-judgment procedures, decisions to strike “parallel”-applications out of the Court’s list were issued after the Court had ordered Contracting States to resolve systemic problems found in their domestic legal orders in pilot judgments. The Court struck applications out of its list if the respective Contracting State had secured the implementation of the respective Convention right so that individual applicants could enjoy their rights,683 or if it had installed a domestic remedy which allowed applicants complaining about violations stemming from the same widespread problem to receive redress on the national level.684 This course of action—as well as the Court’s assessment of remedial measures in friendly settlement decisions towards “pilot”-applicants685—has induced legal commentators to argue that the Court examined measures of the execution of judgments; a task which actually fell, according to these commentators, to the Committee.686 Although the criticism from legal doctrine partly focuses on the Court’s assessment of remedial measures in friendly settlement decisions, its crucial point is nevertheless, in essence, that the Court assessed measures of the execution of its own judgments, which actually was among the Committee’s competences. Therefore, the criticism brought forward also concerns decisions which strike parallel applications out of the Court’s list of cases. In the following, it shall be examined if the general remedial measures which the Court examined in its striking out decisions amounted to an execution of its judgments (19.5.2.2) and, if this question was to be answered in the affirmative, if the Court engaged itself in supervising the execution of its judgments (19.5.2.3). 19.5.2.2 Execution of Judgments Initially, it is to be noted that “parallel” applications were struck out of the Court’s list without a judgment of the Court on the merits in these cases having ever been issued. The applicants in parallel cases were not parties 683 Cf. Wolkenberg and Others v Poland App no 50003/99 (ECtHR, 4 December 2007) para 74. 684 The Association of Real Property Owners in Łódź v Poland App no 3485/02 (ECtHR, 8 March 2011) para 88. 685 Cf. Chapter 18 (p 238). 686 Cf. Separate Opinion of Judge Zagrebelsky joined by Judge Jaeger in Hutten-Czapska v Poland (friendly settlement) App no 35014/97 (ECtHR, 28 April 2008); Buyse, ‘Procedure’ 89; Sadurski, ‘Partnering’ 423; Breuer, ‘Individualbeschwerde’ 124.



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to proceedings in the pilot judgments; only the “pilot”-applicant(s) and the respective Contracting State were parties to these proceedings. No judgment of the Court had been delivered towards the “parallel”-applicants at the time the Court struck their applications out of its list. Generally speaking, if the Court had not struck their applications out in the course of the pilot-judgment procedures, it would have had to issue judgments (on the merits) in these cases, the execution of which would have been under the supervision of the Committee. Thus, the Court did not supervise the execution of a judgment towards “parallel”-applicants, whose applications it struck out of its list, since there had not been any judgment finding a violation to which they were party in the relevant context. From this it could be followed that the Court’s actions did not interfere with competences of the Committee because they were not actions of supervision of the execution of judgments, but they were rather separate and distinct assessments if applications were still relevant, or if the matter at their basis had been resolved according to Article 37 § 1 (b). However, apparently there is a close relation between the Contracting States’ measures of implementation which lead to the Court’s striking out decisions on the one hand, and the Court’s pilot judgments which urged these measures of implementation to be taken on the other hand. It may be assumed that the Contracting States concerned took those general remedial measures which ultimately lead to the striking out decisions with respect to the pilot judgments, thus in execution of those judgments. From this perspective, the Court indeed examined general remedial measures taken by a Contracting State following a (pilot-) judgment, thus it examined measures which were taken by the respondent States with respect to the pilot judgment. These two perspectives—striking out as an distinct and separate procedural act; or as a reaction to general remedial measures taken by the respondent States following pilot judgments, i.e. as acts of execution— reflect the two-faced character of general remedial measures: On the one hand, general remedial measures feature aspects of the execution of judgments finding a violation if the violation was the result of shortcomings in the implementation of the Convention in the respondent State, and if there was a danger of similar violations to occur in the future.687 Accordingly, in legal doctrine it is partly assumed that the Contracting States’ obligation to take general measures followed from the Contracting 687 Cf. as to the obligation to take general remedial measures Chapter 13.3.4 (p 76).

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States’ undertaking to abide by judgments of the Court to which they were party according to Article 46 § 1, i.e. from the binding effect of judgments.688 From this perspective it clearly follows from Article 46 § 2 that it falls to the Committee to supervise if the respondent State takes the required remedial measures. Since the general measures assessed by the Court in the striking out decisions were taken by the respective Contracting States in compliance with obligations following a previous (i.e. the pilot-) judgment, those measures amounted, in the just described perspective, to the execution of judgments, the supervision of which in fact fell to the Committee. On the other hand, general remedial measures also amount to Convention implementation in general: The duty to take general measures involves the Contracting States’ obligation to prevent further similar violations of the Convention and to bring their domestic legal order in line with the Convention.689 As regards the Court’s striking out decisions, it is to be stressed that a duty to implement the Convention does not only exist if there is a judgment finding a violation caused by deficiencies in the implementation of the Convention (or which even explicitly highlights such deficiencies): The Contracting States have to implement the Convention in any case, according to Article 1 read in conjunction with the respective Convention right690—regardless if there was a judgment from which deficiencies in the implementation of the Convention became visible. In this view, judgments finding violations caused by deficiencies in the implementation of the Convention merely make concrete the general obligation to implement the Convention, however, without such judgments being a condition for the duty to implement. Accordingly, in legal doctrine the obligation to take general remedial measures is partly claimed to derive from Article 1 (read in conjunction with the respective Convention rights) rather than from Article 46 § 1;691 thus, it is argued that the 688 Okresek, ‘Umsetzung’ 171; Polakiewicz, Verpflichtungen 49 and 179 et seq; Frowein, Peukert, Menschenrechtskonvention 604; cf. already Chapter 13.3.4 (at p 80). 689 Cf. Chapter 13.3.4 (at p 76); Okresek, ‘Umsetzung’ 170; similarly Ress, ‘Wirkung’ 233; Frowein, Peukert, Menschenrechtskonvention 604. 690 Cf. Chapter 12.2 (p 58). 691 Meyer-Ladewig, Menschenrechtskonvention 400; apparently also Cremer (‘Ents­ cheidung’ 1756) describes this obligation as being a normative implication of the Convention, instead of deriving from the binding effect of judgments; similarly Frowein, Villiger, ‘Report’ 50; Klein, ‘Effect’ 708 et seq; G Ress notes that it was an objective obligation, compliance with which would not be a right of the individual applicant (Ress, ‘Einzelfallbezogenheit’ 743); Polakiewicz, Verpflichtungen 39 et seq., notes that the effects of judgments on parallel national cases exceeds undoubtedly the limits of the binding effect of judgments.



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obligation to take general remedial measures did not derive from the binding effect of judgments, but from the obligation to adhere to the Convention in general. Applying this approach to the Court’s striking out decisions, it could be argued that the Court simply assessed if the Convention had been implemented—separately and distinctly from any previous (pilot-) judgment. In this context it is to be recalled that the Court’s interpretation of Article 37 § 1 (b) (as a legal basis to strike applications out of its list if a domestic remedy has been installed which is capable of providing redress to the applicants concerned) is not limited to the pilot-judgment procedures: The question whether a matter has been resolved because applicants may receive redress on the domestic level does not depend on pilot judgments having been issued or on the fact that the Contracting State’s reforms of the national legal system have taken place only as a reaction to a pilot judgment.692 Considering this, assuming exclusive competences of the Committee to assess general measures taken after judgments would lead to the odd result that the Court would be barred from assessing general measures if there was a previous judgment from which the need to adopt measures of implementation followed: In this case, the adoption of the general measures amounted to the execution of a judgment, the supervision of which fell to the Committee. At the same time, the Court would be competent to assess these measures if they were taken by the Contracting State out of its own initiative, thus also if there was no previous judgment from which an obligation to take general remedial measures followed. The Court’s competences would depend on the existence of a judgment finding a violation. In order to avoid this result, it could be claimed that it was in fact irrelevant for the Court’s powers if measures of Convention implementation were specifically taken after a judgment pointing to deficiencies in the implementation of the Convention, and that the Court simply had to assess if these measures provided applicants with a means to gain redress on the domestic level. Nevertheless, the supervision of the execution of judgments is undoubtedly assigned to the Committee according to Article 46 § 2. Even those legal commentators who ascribe the obligation to take general remedial measures to Article 1 rather than to Article 46 § 1 assume that it was still for the Committee to supervise the adoption of the required general 692 Cf. Chapter 19.5.1 (at p 276).

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measures by the respondent State.693 The Court’s striking out decisions focused on general remedial measures which were taken by the respondent State following a (pilot-) judgment—therefore, the Court indeed examined acts of execution of (pilot-) judgments. However, it does not necessarily follow from this that the Court’s examination of the reform measures in its striking out decisions exceeded its competences; it is rather to be asked if the Court’s examination amounted to a supervision of the execution of a judgment of the Court. 19.5.2.3 Supervision of the Execution of Judgments? When considering whether or not the Court’s approach of striking “parallel”-applications out of its list of cases was in conflict with the Committee’s competences of supervising the execution of judgments, it is to be noted, initially, that the Committee’s tasks when supervising the execution of judgments one the one hand, and the Court’s course of action in striking out decisions on the other hand, significantly deviate from each other: On the one hand, according to the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements, it is the Committee’s task, when supervising the execution of a judgment, to make sure that the Contracting State concerned takes the required remedial measures. To that end, the Committee shall examine whether required remedial (individual and general) measures have been taken by the respondent State (Rule 6). Until the respondent State has taken the required measures, the Committee shall place the case on the agenda of a future meeting and then assess the progress made in the meantime (Rule 7). If a Contracting State continuously fails to adopt the required remedial measures, the Committee may initiate infringement proceedings before the Court (Rule 11). Ultimately, the Contracting State concerned may be suspended from its rights of representation in the Council of Europe,694 and it may be requested by the Committee of Ministers to withdraw from the Council; if such a Contracting State does not comply with this request, the Committee may decide that it has ceased to be a member of the Council as from such date as the Committee may

693 Meyer-Ladewig, Menschenrechtskonvention 400, who claims that this followed from customary international law which had developed in this respect. 694 Every Contracting State of the Convention is also a member of the Council of Europe (Article 59 § 1).



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determine (Article 8 of the Statute of the Council of Europe).695 From this it follows that it is the Committee’s role in the Strasbourg system to make sure, ultimately by resorting to coercive measures, that the Court’s judgments are executed; it has to exercise its powers of scrutiny until a judgment has been fully complied with.696 Examining remedial measures already taken is only one element of this task. On the other hand, the Court’s course of action in its striking out decisions had another aim and involved different procedural steps. The Court’s striking out decisions did not intend to scrutinize if the respondent State indeed complied with a judgment and to induce this State to take the required remedial measures if it had previously failed to do so; in its striking out decisions the Court did not intend to exert pressure on the respondent States concerned to execute the pilot judgment. Instead, the Court aimed at assessing if the matter underlying applications pending before it had been resolved, and if it accordingly could strike them out of its list,697 so as not to be forced to decide on these applications on a case by casebasis.698 If a Contracting State had failed to adopt the required general measures following a pilot judgment, all what the Court could do was to find violations of the Convention in all similar cases, instead of striking these cases out of its list.699 Accordingly, the Court’s course of action in its striking out decisions did not amount to a supervision of the execution of its judgments: The Court did not control or monitor the Contracting States in executing pilot judgments, there was no formalized dialogue between the Court and the Contracting States as regards the execution process, and the Court did not (intend to) exert any pressure on the Contracting States concerned to execute its judgments. The Court solely examined if, at the time of its decision, the respondent State had implemented the respective 695 Van Dijk and others, Theory and Practice 295 et seq; Meyer-Ladewig, Menschen­ rechtskonvention 401 et seq. 696 Cf. Rule 17 of the Committee’s ‘Rules for the Supervision of the Execution of Judgments’. 697 Cf. Wolkenberg and Others v Poland App no 50003/99 (ECtHR, 4 December 2007) para 77. 698 The Court has repeatedly held that it was one aim of the pilot-judgment procedure to induce the respondent State to resolve large numbers of individual cases arising from the same structural problem at the domestic level (cf. for instance Suljagić v Bosnia and Herzegovina App no 27912/02 [ECtHR, 3 November 2009] para 62). Once a systemic defect had been identified, it fell to the national authorities to take, retroactively if appropriate, the necessary remedial measures, so that the Court did not have to repeat its finding in a lengthy series of comparable cases (cf. for instance Broniowski v Poland App no 31443/96 [ECtHR, 22 June 2004] para 193). 699 Cf. E.G. v Poland App no 50425/99 (ECtHR, 23 September 2008) para 28.

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Convention right or installed a domestic remedy, so that similar applications could be struck out of the Court’s list of cases. From this it is to be followed that the Court’s approach in its striking out decisions did not, in fact, amount to a supervision of the execution of its judgments since this supervision had a different focus and purpose, and involved different procedural means. True, also according to Rule 6 of the Rules of the Committee, it shall examine whether general measures have been adopted. In this respect, the tasks of the Committee in the supervision process and the Court’s actions when deciding if similar applications may be struck out of its list indeed appear to overlap. However, there are no indications that the Court’s examination of general remedial measures in its striking out decisions predetermined the Committee’s elaborations, so that the Committee was barred from reaching an own judgment on the Contracting State’s measures. This is also highlighted by the Court, when it states, for instance in striking out decisions in the Broniowski-pilot judgment procedure, that “it still remains for the Committee of Ministers to supervise, in accordance with Article 46 of the Convention, the execution of the Broniowski merits and friendly-settlement judgments and the discharge by the Polish State of its obligation to ensure the continued effective operation of the Bug River legislation”.700 Therefore, also as regards an examination of the general remedial measures taken by a Contracting State following pilot judgments, the Committee keeps its full competences to supervise the execution of judgments. M. Breuer is to be agreed with that a strong and efficient supervision by the Committee becomes crucial in the case of pilot-judgment procedures.701 Indeed, the Committee may exercise strong and efficient supervision irrespective of the Court’s striking out decisions. It is to be concluded that the Court’s course of action in its striking out decisions is essentially different from the Committee’s tasks in the process of supervising the execution of judgments, and that it leaves the Committee’s power of decision untouched. Therefore, Article 37 § 1 (b) is to be interpreted as empowering the Court to focus also on general remedial measures when considering striking applications out of its list.

700 E.G. v Poland App no 50425/99 (ECtHR, 23 September 2008) para 29; likewise in The Association of Real Property Owners in Łódź v Poland App no 3485/02 (ECtHR, 8 March 2011) para 90. 701 Buyse, ‘Procedure’ 89.



adjournment and striking out of applications285 19.6 Abstaining from Adjournment?

In the following, it shall be examined if the Court should abstain from the adjournment of similar applications at all in order to reconcile the pilotjudgment procedure with the right to individual application. Due to a combination of adjournment and of striking out similar applications, the individual applicant in fact faces two detriments: On the one hand, he has to wait longer for a decision on his application because its consideration has been adjourned. On the other hand, when the Court finally takes a decision, the applicant is sent back to the domestic level in order to resubmit his grievances with the newly installed domestic remedy. Accordingly, as regards the position of the individual applicant, a combination of the adjournment of similar applications and of striking those applications out of the Court’s list leads to a particularly detrimental interference with the right to individual application: If the consideration of applications is postponed by the Court, then applicants concerned have to wait longer for a decision on their case just to be sent back to the national level at last to submit their claims with a domestic remedy.702 Considering this, it is to be highlighted that striking applications out of the Court’s list is also purposeful without previously adjourning the consideration of these applications: After the delivery of the pilot judgment, the Court may continue to decide on applications stemming from the same systemic problem, thus it may abstain from adjourning those applications. True, considering the high workload of the Court, continuing to decide on repetitive cases is an impairing task, which is facilitated, however, by the competence of the Court’s committees to decide on repetitive applications, as stipulated in Article 28 § 1(b) by Protocol No 14. Once a domestic remedy has been installed, the Court may proceed to striking applications out of its list and to inducing those applicants to resort to the newly installed domestic remedy. True, the Court will have to deliver judgments on the merits in all cases which become ready for decision after the delivery of the pilot judgment and before the instalment of a domestic 702 In that regard, it is to be recalled that the Court aimed at mitigating this effect by differentiating between applications which have been pending before the delivery of the pilot judgment—consideration of which it only adjourned in order to await direct redress to be granted to those applicants by the respondent State—and applications which would have been lodged after the delivery of the pilot judgment—consideration of which it adjourned in order to sent them back to the domestic level as soon as a domestic remedy would have been installed; cf. Chapter 19.2 (p 257) as to the various modes of adjournment the Court has applied.

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remedy: Until the introduction of a domestic remedy, all those cases will not have been resolved according to Article 37 § 1 (b)703 since the applicants concerned will not be able to resubmit their grievances on the domestic level. But still, the Court will be empowered to consider applications, which become ready for decisions after a sufficient domestic remedy has been installed, to have been resolved and to strike them out of its list. This shows that the instrument of striking decisions out of the Court’s list may be applied without an adjournment of proceedings. If it is indeed applied without adjournment, it would only adversely affect individual applicants in that they are compelled to resubmit their claims on the domestic level. However, striking out applications without adjournment would not adversely affect applicants in that they had to wait during the adjournment period; any application which becomes ready for decision before the instalment of a domestic remedy would be decided on by the Court itself—at least once they become ready for decision, considering the overload of the Strasbourg system. Certainly, combining the adjournment and striking out of similar applications will produce the best results as regards relieving the Court’s docket, compared with abstaining from adjourning and only striking applications out of the Court’s list once a domestic remedy has been installed. When combining the adjournment and striking out of similar applications, the Court will be able to dispose of a considerable number of cases already pending or being lodged in the future without having to deliver judgments on the merits in each case: If it adjourns the consideration of similar cases until a domestic remedy has been installed, it is relieved from dealing with these cases for the moment. Thereupon, the Court may strike a considerable number of applications out of its list in single decisions after a domestic remedy has been installed, as it was done, for instance, in the Broniowski-pilot judgment procedure.704 However, as was said, this combination also interferes strongly with the right to individual application. 19.7 Interim Conclusion In its pilot-judgment procedures the Court adjourned the consideration of applications stemming from the same systemic problem with a view to 703 Cf. Chapter 19.5.1 (p 272) as regards Article 37 § 1 (b) as a legal basis for the Court’s striking out decisions. 704 Cf. the Court’s striking out decision in E.G. v Poland App no 50425/99 (ECtHR, 23 September 2008), where the Court struck 176 applications out of its list.



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striking those applications out of its list once a domestic remedy had been installed which was capable of providing the applicants concerned with sufficient redress on the domestic level. As regards the temporal aspect of this course of action—which is constituted by the adjournment of proceedings—Article 38 can be interpreted as empowering the Court to proceed as described. However, the Court’s duty to decide on applications as well as the right to individual application, according to Article 34 and 38, bind the Court not to delay the consideration of applications for an excessively long time, which is not determined by the Convention though. In pilot-judgment procedures conducted so far the time passed by between the delivery of the pilot judgment and the striking out decisions was remarkably long. In order to mitigate the detrimental effects on the right to individual application, the Court’s practice of adjourning only those applications which are lodged after the pilot judgment is to be endorsed. As regards the second aspect of the Court’s approach after pilot judgments—the striking out of applications stemming from the same systemic problem once a domestic remedy has been installed—Article 37 § 1 (b) is to be considered a suitable legal basis. In any case, the Court has to conduct a thorough assessment of the efficiency of the domestic remedy to be sure that a matter has been resolved in accordance with Article 37 § 1 (b). With respect to the relation between the Court and the Committee, it is to be stated that the Contracting States’ measures which the Court examined in its striking out decisions were indeed measures of execution of (pilot-) judgments; supervising measures of execution of a judgment is clearly among the powers of the Committee. However, the Court’s course of action is not to be regarded as a supervision of the execution of judgments since it has a different aim and is of a different procedural nature. In addition, the Court’s examination does not predetermine the Committee’s competences to supervise the execution of judgments. Considering this, there is no conflict between the Court’s striking out decisions and exclusive powers of the Committee.

PART SIX

CONCLUSION

CONCLUSION 1. The pilot-judgment procedure is to be understood in the light of the overload of the Strasbourg system of human rights protection, which is caused in particular by failures of Contracting States to fully implement the Convention (i.e. by “systemic problems”) and the large numbers of similar, i.e. “repetitive” applications stemming from those systemic problems. In order to cope with the overload, the Court has delivered several “pilot judgments” in which it induced the Contracting States concerned to resolve systemic problems, and it has participated in the process of the execution of its pilot judgments. 2. Several predecessors of the pilot-judgment procedure can be identified. First, the Court tried to deal more effectively with applications by conducting summary examinations, especially of applications alleging a violation of the right to trial within a reasonable time. Secondly, the Court aimed at inducing the Contracting States to improve human rights protection on the domestic level, i.e. it emphasised the principle of subsidiarity, for instance in the case of Kudła. Thirdly, also before the first pilot judgment the Court had included imperative determinations of remedial obligations in the operative part of its judgments, for instance in the case of Assanidze; however, these determinations concerned only individual remedial measures. 3. The pilot-judgment procedure has also been dealt with in the political process concerning the reform of the Strasbourg system and Protocol No 14. However, the Contracting States have not stipulated rules for the pilot-judgment procedure in the Convention. 4. The pilot-judgment procedure consists of various elements which have been variously used and combined by the Court. Among them are the finding of a systemic problem or a practice incompatible with the Convention; distinct determinations of required general remedial measures; the adjournment of the consideration of applications stemming from the same systemic problem while awaiting the adoption of remedial measures by the Contracting State concerned; the examination of remedial measures envisaged or adopted by the Contracting State concerned after a pilot judgment (in judgments on friendly settlements or in striking out decisions); and the striking out of applications stemming from the same systemic problem once a domestic remedy has been installed.

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5. The pilot-judgment procedure is closely related to the interpretation of the Contracting States’ obligations under the Convention. They are bound to fully adjust their domestic legal systems to the requirements deriving from the Convention, and to take comprehensive general measures of redress if a judgment has revealed that a violation was prompted by deficiencies in the implementation of the Conven­tion. However, such an interpretation has already been recognized before the first pilot judgment; the Court has only emphasised these obligations particularly clearly in its pilot judgments. Therefore, the Court’s interpretation of the Contracting States’ obligations in its pilot judgments is not to be considered as a new approach to redress. 6. When seeking to determine competences of the Court to take the pro­ cedural steps which are characteristic for the pilot-judgment procedure, it has been assessed if the Court may deal with widespread human rights problems in proceedings following individual applications. There are indeed indications in the Convention and in the Court’s case law for a duty of the Court to confine its attention to the particular turn of events in the applicant’s case. However, it is to be highlighted that the individual complaints procedure also has general features aiming at upholding a general standard of human rights protection. Therefore, the Court is not restricted to the very facts of the individual applicant’s case, but is empowered to adopt a comprehensive focus when dealing with a case. This also implies that the Court’s findings on systemic problems feature a binding effect on the Contracting State concerned. 7. Also the Court’s determinations of the Contracting States’ remedial obligations require a legal basis in the Convention—in order not to be ultra vires acts, and in order to be binding upon the Contracting States. Traditionally, several arguments have been invoked in the Court’s caselaw and in legal doctrine in order to deny competences of the Court to explicitly determine remedial measures in its judgments: That the Court’s judgments were essentially declaratory; that they would leave the choice of means to execute a judgment to the Contracting States; and that it was the Committee’s exclusive power to supervise the execution of judgments. However, also before the first pilot judgment the Court had not always adhered to its self-imposed restriction and had determined, more or less imperatively and distinctly, remedial measures in its judgments. 8. In order to assess if the Court is competent under the Convention to prescribe remedial measures in its judgments, Convention provisions

conclusion293 which may be interpreted as empowering the Court to determine remedial obligations have to be examined. In that regard, neither Article 46 § 1 nor Article 41 concede competences to prescribe remedial measures beyond the award of just satisfaction to the Court. On the other hand, Article 32 may be understood as empowering the Court to interpret and apply all provisions of the Convention to a concrete case—including Article 46 § 1. From this perspective, the Court is empowered to determine which remedial obligations follow for the respondent State in terms of an interpretation of the Contracting States’ undertaking to abide by judgments of the Court according to Article 46 § 1. An interpretation of Article 32 (read in conjunction with Article 46 § 1) in the light of the Convention’s object and purpose of providing for an effective human rights protection strengthens this reading since resolving a systemic problem eases the overload of the Strasbourg system. Similarly, the Court’s task of ensuring the observance of the engagements undertaken by the Contracting States, according to Article 19, may be understood as conceding to the Court the (implied) power to prescribe remedial measures if it furthers the functioning of the Strasbourg system—which is to be assumed. 9. Competences of the Court to prescribe remedial measures may only be assumed if they are in conformity with the Contracting States’ discretion when executing judgments. Such a discretion follows from the abstractness of obligations under the Convention, which merely bind the Contracting States to implement the Convention and to fully execute judgments finding a violation. Therefore, as a rule, the Contracting States are not obliged to take particular means of implementation or execution. They only have to make sure full implementation or execution—in other words, they have to achieve a certain result. This result may derive already from the Court’s findings on the cir­cumstances of a violation in its judgments. If the Court even includes findings on systemic problems in its judgments, these findings will also determine the result to be achieved by the implementation or execution. If the Court only explicitly highlights these obligations by way of determinations of remedial obligations in its judgments, it does not violate the Contracting States’ discretion. The Court acted accordingly in most pilot judgments conducted until the completion of this examination: They only prescribed, in a more or less paraphrased way, that the Convention was to be fully implemented in the field under consideration. Only in a few cases (Greens and M.T.; Suljagić) it may be argued that the Court exceeded these boundaries by prescribing particular

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remedial actions instead of confining its determinations to the result to be achieved. 10. Competences of the Court to prescribe remedial measures may only be assumed if they are in conformity with the Committee’s power to supervise the execution of judgments. The Committee’s powers are not in conflict with the Court’s determinations of remedial obligations considering that the division of functions established in Article 46 § 2 runs along the delivery of a judgment of the Court: The Court’s powers are limited to delivering judgments—a limit which the Court complied with since its determinations are a part of (pilot-) judgments. 11. The Court’s examinations of general remedial measures envisaged or already taken in judgments on friendly settlements between the “pilot”applicant and the respondent State have a legal basis in Article 39. Since the Court confines its attention to ascertaining if the respondent State has demonstrated an active commitment in order to resolve a systemic problem, there is no conflict with the Committee’s powers to supervise the execution of judgments. In any way, the Court’s examination of general remedial measures in friendly settlement judgments is dispensable for a successful outcome of a pilot-judgment procedure since the friendly settlement judgment deals only with a single (namely the “pilot”-) applicant while numerous other applications remain on the Court’s docket. Considering this and the legal questions as to the conformity with the Convention which the Court’s course of action raises nevertheless, the Court should avoid assessing general remedial measures in friendly settlement judgments. This could either be done by confining its focus of attention to individual measures of redress in friendly settlement judgments, or by already deciding on just satisfaction for the “pilot”-applicant in the pilot judgment itself. 12. The Court’s adjournment of the consideration of applications stemming from the same systemic problem while awaiting the respondent State’s remedial actions is closely related to the Court’s practice of striking those applications out of its list of cases once an effective domestic remedy has been installed. Adjournment can be based on Article 38 if it is interpreted in the light of the Convention’s object and purpose of providing for an effective human rights protection. Striking out applications once a domestic remedy has been installed has a legal basis in Article 37 § 1 (b). The Court’s examination of domestic remedies installed after a pilot judgment is not in conflict with the Committee’s powers of supervising the execution of judgments. In any case, the adjournment of similar applications with a view to striking them out

conclusion295 once a domestic remedy has been installed may, depending on the individual case, considerably interfere with the right to individual application. Considering this, the Court should continue the examination of applications stemming from a particular systemic problem after the delivery of the pilot judgment. It may proceed to striking pending applications out of its list once a domestic remedy has been installed.

ANNEX

APPENDIX ONE

PILOT JUDGMENTS Broniowski v Poland (2004) During and after World War II, numerous persons previously settled beyond the Bug River had to abandon their property there; among them was a relative of the applicant. The applicant, who had inherited his grandmother’s property, had not received sufficient compensatory property until the date he had lodged his application, although a respective entitlement had been vested in him by Polish legislation.1 The applicant complained about a violation of Article 1 of Protocol No 1. The Court acted on the assumption that a large number of other persons had met a comparable fate.2 In the operative part of its judgment the Court held that the violation found “originated in a systemic problem connected with the malfunctioning of domestic legislation and practice caused by the failure to set up an effective mechanism to implement the ‘right to credit’ of Bug River claimants”; that the respondent State must, “through appropriate legal measures and administrative practices, secure the implementation of the property right in question in respect of the remaining Bug River claimants or provide them with equivalent redress in lieu, in accordance with the principles of protection of property rights under Article 1 of Protocol No. 1.”3 In its reasoning the Court pronounced that it would adjourn consideration of applications deriving from the same general cause, pending the implementation of the relevant general measures.4 In a friendly settlement decision the Court stated that, in its view, the respondent Government had demonstrated an active commitment to take measures intended to remedy the systemic defects found by the Court and struck the pilot-application out of its list of cases.5 In subsequent 1 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 122 et seq. 2 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 193. 3 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) 3rd and 4th operative provision. 4 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004) para 198. 5 Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005).

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decisions, the Court struck applications in parallel cases out of its list of cases and closed the pilot-judgment procedure.6 Lukenda v Slovenia (2005) The applicant alleged under Article 6 § 1 that the length of the proceedings before the domestic courts to which he had been a party had been excessive and that there was no effective domestic remedy in respect of the excessive length of the proceedings (Article 13). According to the Court it was clear that the length of judicial proceedings remained a major problem in Slovenia; approximately 500 length of proceedings cases were pending before the Court when the pilot judgment was delivered.7 In the operative part of the judgment, the Court held that the violations found in accordance with the applicant’s allegations “have originated in the malfunctioning of domestic legislation and practice”, furthermore, “that the respondent State must, through appropriate legal measures and administrative practices, secure the right to a trial within a reasonable time”.8 The Court did not adjourn consideration of similar applications. After the delivery of its pilot judgment, the Court found violations stemming from the same systemic problem in various judgments.9 Until the completion of this examination, the Committee had not concluded the supervision process.10 Xenides-Arestis v Turkey (2004) The applicant alleged a continuing violation of Article 8 of the Convention and Article 1 of Protocol No. 1, taken alone and in conjunction with Article 14. In particular, she maintained that the Turkish military forces

6 E.G. v Poland App no 50425/99 (ECtHR, 23 September 2008); Witkowska-Toboła v Poland App no 11208/02 (ECtHR, 4 December 2007); Wolkenberg and Others v Poland App no 50003/99 (ECtHR, 4 December 2007). 7 Lukenda v Slovenia App no 23032/02 (ECtHR, 6 October 2005) para 90 et seq. 8 Lukenda v Slovenia App no 23032/02 (ECtHR, 6 October 2005) 4th and 5th operative provision. 9 Eg. Beguš v Slovenia App no 25634/05 (ECtHR, 15 December 2011). 10  accessed 28 October 2012.



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were preventing her from having access to, using and enjoying her home and property in northern Cyprus. In the reasoning of its judgment the Court stated that the violation of the applicant’s rights originated in a widespread problem affecting large numbers of people and noted that there are already approximately 1,400 property cases pending before it brought primarily by Greek Cypriots against Turkey.11 In the operative part the Court held that “the respondent State must introduce a remedy which secures the effective protection of the rights laid down in Article 8 of the Convention and Article 1 of Protocol No. 1 in relation to the present applicant as well as in respect of all similar applications pending before the Court. Such a remedy should be available within three months from the date on which the present judgment is delivered and redress should be afforded three months thereafter”.12 Again in its reasoning, the Court adjourned its consideration of all applications deriving from the same general cause.13 In its judgment on the pilot-applicant’s just satisfaction, the Court welcomed the steps taken by the Government in respect of all similar applications pending before it.14 Hutten-Czapska v Poland (2006) The applicant was the owner of a house in Poland and, according to the Court, one of about 100,000 landlords affected by a restrictive system of rent control, which originated in laws adopted under the former communist regime. The applicant complained about a violation of Article 1 of Protocol No 1. The Court held that, at the time of the delivery of the pilot judgment, 18 similar applications were pending before the Court, one of them filed by an association representing some 200 landlords.15 In the operative part of its judgment, the Court held that the violation of the applicant’s right “originated in a systemic problem connected with the malfunctioning of domestic legislation in that: (a) it imposed, and continues to impose, restrictions on landlords’ rights, including defective 11 Xenides-Arestis v Turkey App no 46347/99 (ECtHR, 22 December 2005) para 38. 12 Xenides-Arestis v Turkey App no 46347/99 (ECtHR, 22 December 2005) 5th operative provision. 13 Xenides-Arestis v Turkey App no 46347/99 (ECtHR, 22 December 2005) para 50. 14 Xenides-Arestis v Turkey (just satisfaction) App no 46347/99 (ECtHR, 7 December 2006) para 37. 15 Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 236.

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provisions on the determination of rent; (b) it did not and still does not provide for any procedure or mechanism enabling landlords to recover losses incurred in connection with property maintenance”; and that the respondent State “must, through appropriate legal and/or other measures, secure in its domestic legal order a mechanism maintaining a fair balance between the interests of landlords and the general interest of the community, in accordance with the standards of protection of property rights under the Convention”.16 In its reasoning the Court pronounced that it would adjourn its consideration of applications deriving from the same general cause, pending the implementation of the relevant general measures.17 In a friendly settlement decision in 2008, the Court noted that the Government had demonstrated an active commitment to take measures aimed at resolving the systemic problem identified in the principal judgment and struck the pilot-applicant’s case out of its list of cases.18 In 2011 it struck further applications out of its list of cases and closed the pilotjudgment procedure.19 Burdov v Russia (No 2) (2009) The applicant was entitled to various social benefits, which the respondent State, although sued repeatedly by the applicant, failed to pay in full and in due time. The applicant complained about a violation of Article 6 and of Article 1 of Protocol No 1. The Court held that non-enforcement of delayed enforcement of domestic judgments constituted a recurrent problem in the respondent State, with violations found by the Court in more than 200 judgments already; approximately 700 cases concerning similar facts were pending before the Court against Russia.20 Although not alleged by the applicant, the Court found, apart from violations of the alleged Articles, a violation of Article 13.21 It held that 16 Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) 3rd and 4th operative provision. 17 Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006) para 247. 18 Hutten-Czapska v Poland (friendly settlement) App no 35014/97 (ECtHR, 28 April 2008). 19 The Association of Real Property Owners in Łódź v Poland App no 3485/02 (ECtHR, 8 March 2011). 20 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) para 122 et seq. 21 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) 4th operative provision.



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the violations found “originated in a practice incompatible with the Convention which consists in the State’s recurrent failure to honour judgment debts and in respect of which aggrieved parties have no effective domestic remedy”, that “the respondent State must set up, within six months …, an effective domestic remedy … which secures adequate and sufficient redress for non-enforcement or delayed enforcement of domestic judgments in line with the Convention principles as established in the Court’s case-law” and that the respondent State had to “grant such redress, within one year from the date on which the judgment becomes final, to all victims of non-payment or unreasonably delayed payment by State authorities of a judgment debt in their favour who lodged their applications with the Court before the delivery of the present judgment”. Pending the adoption of these measures, the Court decided to “adjourn, for one year from the date on which the judgment becomes final, the proceedings in all cases concerning solely the non-enforcement and/or delayed enforcement of domestic judgments ordering monetary payments by the State authorities… ”.22 There were long delays in the adoption of general measures following the pilot judgment.23 In 2010 the Court declared two applications alleging violations stemming from the systemic problem as inadmissible for nonexhaustion of domestic remedies, since the respondent State had introduced such a remedy on the domestic level and the applicants had failed to resort to it.24 In November 2011 the Committee noted that an effective remedy had been installed with respect to the systemic problem and closed the examination of measures of implementation in that respect.25 Olaru and Others v Moldova (2009) Final domestic court decisions had ordered national authorities to provide the four applicants with accommodation, but had not been enforced 22 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009) 5th to 8th operative provision. 23 Cf. the Committee’s Interim Resolution CM/ResDH(2009)158 accessed 28 October 2012. 24 Nagovitsyn and Nalgiyev v Russia App nos 27451/09, 60650/09 (ECtHR, 23 September 2010) para 27 et seq; cf. also the Committee’s Interim Resolution CM/ResDH(2011)293 accessed 28 October 2012. 25 CM/ResDH(2011)293 accessed 28 October 2012.

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until the day of the delivery of the pilot judgment. The applicants complained about a violation of Article 6 § 1 and of Article 1 of Protocol No 1. The Court noted that the problem of non-enforcement of final judgments was the respondent State’s prime problem in terms of numbers of applications pending before the Court, with approximately 300 such applications being registered on the Court’s list of cases on the date of adoption of the pilot judgment. In the operative part of the judgment, the Court held that the violations found in accordance with the applicant’s allegations “originated in a practice incompatible with the Convention which consists in the State’s recurrent failure to comply with final judgments awarding social housing in respect of which aggrieved parties have no effective domestic remedy”, that “the respondent State must set up, within six months from the date on which the judgment becomes final …, an effective domestic remedy which secures adequate and sufficient redress for non-enforcement or delayed enforcement of final domestic judgments concerning social housing in line with the Convention principles as established in the Court’s case-law” and that “the respondent State must grant such redress, within one year from the date on which the judgment becomes final, to all victims of nonenforcement or unreasonably delayed enforcement of social housing final judgments in cases lodged with the Court before the delivery of the present judgment”.26 Pending the adoption of these measures, the Court decided to “adjourn, for one year from the date on which the judgment becomes final, the proceedings in all cases concerning the nonenforcement and/or delayed enforcement of final domestic judgments concerning social housing …”.27 In subsequent judgments, the Court struck single “pilot”-applications out of its list after a friendly settlement had been reached28 or just satisfaction had been awarded otherwise;29 the the Court also awarded financial claims to “pilot”-applicants.30 In 2011 the Court delivered a further judgment finding violations stemming from the same systemic problem.31 26 Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) 3rd-5th operative provision. 27 Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009) 6th operative provision. 28 Lungu v Moldova App no 17911/08 (ECtHR, 6 April 2010). 29 Racu v Moldova App no 13136/07 (ECtHR, 20 April 2010). 30 Gusan v Moldova App no 22539/05 (ECtHR, 28 September 2010); Olaru v Moldova App no 476/07 (ECtHR, 12 October 2010). 31 Vartic and Others v Moldova App nos 12674/07 and others (ECtHR, 20 September 2011), cf. para 8.



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In 2012 the Court declared applications inadmissible for non-exhaustion of domestic remedies because the respondent State had installed a remedy in the field of the systemic problem.32 Yuriy Nikolayevich Ivanov v Ukraine (2009) Final domestic court decisions had allowed the applicant’s claim for retirement payments but had partly remained unenforced until the day of the delivery of the pilot judgment. The applicant complained about a violation of Article 6 § 1 and of Article 1 of Protocol No 1. The Court noted that it had delivered judgments in more than 300 cases against Ukraine in similar cases during the past five years; approximately 1,400 similar applications were pending before the Court and the number of such applications was constantly increasing.33 Although not alleged by the applicant, the Court found, apart from violations of the alleged Articles, a violation of Article 13.34 It held that the violations towards the applicant “originated in a practice incompatible with the Convention which consists in the respondent State’s recurrent failure to comply in due time with domestic decisions for the enforcement of which it is responsible and in respect of which aggrieved parties have no effective domestic remedy”, that “the respondent State must set up without delay, and at the latest within one year from the date on which the judgment becomes final …, an effective domestic remedy … capable of securing adequate and sufficient redress for the non-enforcement or delayed enforcement of domestic decisions, in line with the Convention principles as established in the Court’s case-law”, and that “the respondent State must grant such redress, within one year from the date on which the judgment becomes final, to all applicants whose applications pending before the Court were [or will be] communicated to the Government … and concern arguable complaints relating solely to the prolonged nonenforcement of domestic decisions for which the State was responsible, including where complaints alleging a lack of effective remedies in respect

32 Balan v Moldova App no 44746/08 (ECtHR, 24 January 2012); Mânăscurtă v Moldova App no 31856/07 (ECtHR, 14 February 2012). 33 Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) para 83 et seq. 34 Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) 3rd operative provision.

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of such non-enforcement are also raised”.35 Pending the adoption of these measures, the Court decided to “adjourn, for one year …, the proceedings in all cases in which the applicants raise arguable complaints relating solely to the prolonged non-enforcement of domestic decisions for which the State is responsible, including cases in which complaints alleging a lack of effective remedies in respect of such non-enforcement are also raised …”.36 After the pilot judgment the Court struck applications resulting from the same systemic problem out of its list in a multitude of decisions in case the applicants had received redress.37 However, the period of adjournment elapsed in July 2011 without the respondent State having resolved the structural problem as such. Therefore, in February 2012 the Court decided to resume the examination of the adjourned applications and delivered a judgment concerning 116 applications in July 2012.38 Until the completion of this examination, the Committee had not concluded the supervision process.39 Suljagić v Bosnia-Herzegovina (2009) In the 1970s and 1980s the applicant had deposited foreign currency with a bank based in the Socialist Federal Republic of Yugoslavia. Over decades he was hindered from withdrawing his funds; in 2007 and 2009 he received partial payment.40 The applicant alleged a violation of Article 1 of Protocol No 1. The Court referred to data according to which more than a quarter of the population of the respondent State had comparable currency savings. 1,350 similar applications were pending before the Court.41

35 Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) 4th-6th operative provision. 36 Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009) 7th operative provision. 37 For instance Orlov v Ukraine App no 44404/07 (ECtHR, 14 December 2010), where the Court struck 44 applications out of its list; Roman v Ukraine App no 26678/07 (ECtHR, 10 April 2012), where the Court struck 37 applications out of its list. 38 Kharuk and Others v Ukraine App no 703/05 and others (ECtHR, 26 July 2012). 39  accessed 28 October 2012; cf. also Zhovner v Ukraine App no 56848/00 (ECtHR, 29 June 2004). 40 Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) para 20 et seq. 41 Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) para 63.



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In the operative part of the judgment, the Court held that the violation found in accordance with the applicant’s allegations “represents a systemic problem”, that “the respondent State must ensure, within six months from the date on which the judgment becomes final … : (a) that government bonds are issued in the Federation of Bosnia and Herzegovina; (b) that any outstanding instalments are paid in the Federation of Bosnia and Herzegovina; (c) that the Federation of Bosnia and Herzegovina undertakes to pay default interest at the statutory rate in the event of late payment of any forthcoming instalment”. In addition, the Court decided “to adjourn, for six months from the date on which the present judgment becomes final, the proceedings in all cases concerning ‘old’ foreigncurrency savings in the Federation of Bosnia and Herzegovina and the Brčko District in which the applicants have obtained verification certificates.42 In 2010 the Court referred to the Committee’s opinion that the respondent State had taken all necessary measures to comply with the pilot judgment; it struck one application still pending out of its list of cases and decided to “close the pilot-judgment procedure”.43 Rumpf v Germany (2010) In 1993, the national authorities had refused to renew the applicant’s gun licences. The following domestic procedures had still not be concluded in 2006, when the applicant filed his complaint with the Court, alleging a violation of Article 6 § 1 and of Article 13. The Court noted that the applicant’s case concerned a recurring problem underlying the most frequent violations of the Convention found by the Court in respect of Germany; more than half of its judgments against Germany finding a violation concerned the issue of excessive length of judicial proceedings.44 In the operative part of the judgment, the Court held that the violations found in accordance with the applicant’s allegations “originated in a practice incompatible with the Convention which consists in the respondent State’s recurrent failure to help ensuring that proceedings determining civil rights and obligations are completed within a reasonable time and to 42 Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009) 3rd–5th operative provision. 43 Zadrić v Bosnia and Herzegovina App no 18804/04 (ECtHR, 16 November 2010); cf. also the Committee’s Resolution CM/ResDH(2011)44 of 8 June 2011. 44 Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) para 53.

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take measures enabling applicants to claim redress for excessively long civil proceedings at a domestic level” and that the “respondent State must set up without delay, and at the latest within one year of the date on which the judgment becomes final …, an effective domestic remedy or combination of such remedies capable of securing adequate and sufficient redress for excessively long proceedings, in line with the Convention principles as established in the Court’s case-law”.45 The Court did not consider it appropriate to adjourn the examination of similar cases pending the implementation of the relevant measures by the respondent State.46 After the pilot judgment, the Court continued to find violations due to the unreasonable length of proceedings and the lack of a domestic remedy.47 In 2011, the German legislator adopted a law providing persons affected by excessively long investigations or court proceedings in criminal matters a domestic remedy.48 Subsequently, the Court declared applications inadmissible for non-exhaustion of domestic remedies.49 Maria Atanasiu and Others v Romania (2010) The case concerned shortcomings in the Romanian system of restitution and compensation with respect to property which had been nationalized during the communist rule.50 The Court noted that several hundred similar applications were pending before the Court which were liable to give rise to further judgments finding a breach of the Convention.51 In the operative part of the pilot judgment, the Court did not find that there existed a systemic problem or a practice incompatible with the 45 Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) 4th and 5th operative provision. 46 Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) para 74 et seq. 47 For instance Kuhlen-Rafsandjani v Germany App nos 21980/06 and others (ECtHR, 20 January 2011); Kuppinger v Germany App no 41599/09 (ECtHR, 21 April 2011); Bellut v Germany App no 21965/09 (ECtHR, 21 July 2011). 48 ‘Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren’, Official gazette for federal legislation, 1st part, page 2302; cf. also the information on the Committee’s website accessed 28 October 2012. 49 Eg. Schellmann and JSP Programmentwicklung Gmbh & Co. KG v Germany App no 27366/07 (ECtHR, 10 July 2012). 50 Maria Atanasiu and Others v Romania App nos 30767/05, 33800/06 (ECtHR, 12 October 2010) para 7–13, 215 et seq. 51 Maria Atanasiu and Others v Romania App nos 30767/05, 33800/06 (ECtHR, 12 October 2010) para 217.



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Convention. It only held that “the respondent State must take measures to ensure effective protection of the rights guaranteed by Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, in the context of all the cases similar to the present case, in accordance with the principles enshrined in the Convention …. These measures must be put in place within eighteen months from the date on which the present judgment becomes final”.52 The Court furthermore decided to adjourn examination of all applications stemming from the same general problem for eighteen months.53 Until the completion of this examination, the Committee had not concluded the supervision process.54 Greens and M.T. v United Kingdom (2010) The applicants alleged a violation of Article 3 of Protocol No. 1 to the Convention as a result of the refusal to enrol them on the electoral register for domestic elections and for elections to the European Parliament. They further complained under Article 13 that they did not have an effective remedy. The Court emphasised that the finding of a violation in the present two cases was the direct result of the failure of the authorities to introduce measures to ensure compliance with the Grand Chamber’s judgment in Hirst. According to the Court, 2,500 applications were pending at the time of the delivery of the pilot judgment; 70,000 serving prisoners in the respondent State constituted potential applicants.55 In the operative part of the judgment, the Court held that the violation of Article 3 of Protocol No 1 found in the applicant’s case “originated in the failure of the respondent State to execute the judgment of this Court in Hirst v. the United Kingdom (no. 2) [GC]”; furthermore, that the respondent State must “(a) bring forward, within six months of the date upon which the present judgment becomes final, legislative proposals intended to amend the 1983 Act and, if appropriate, the 2002 Act in a manner which is Convention-compliant; and (b) enact the required legislation within any 52 Maria Atanasiu and Others v Romania App nos 30767/05, 33800/06 (ECtHR, 12 October 2010) 6th operative provision. 53 Maria Atanasiu and Others v Romania App nos 30767/05, 33800/06 (ECtHR, 12 October 2010) 7th operative provision. 54  accessed 28 October 2012. 55 Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 111.

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such period as may be determined by the Committee of Ministers”.56 In its reasoning, the Court announced that it would discontinue its examination of applications registered prior to the date of delivery of the pilot judgment and raising complaints similar to those in the case of Hirst pending compliance by the respondent State with the terms of the pilot judgment; furthermore, that it would suspend the treatment of any applications not yet registered at the date of delivery of the pilot judgment, as well as future applications, raising such complaints.57 Until the completion of this examination, no subsequent judgments or decisions had been delivered by the Court with respect to its pilot judgment. Until the completion of this examination, the Committee had not concluded the supervision process.58 Vassilios Athanasiou and Others v Greece (2010) Relying on Article 6 § 1, the applicants complained of the excessive length of the proceedings instituted by them with a view to obtaining an additional retirement pension from the Army Solidarity Fund. Under Article 13, they complained that there was no effective remedy under Greek law for their situation. In the operative part, the Court found a systemic problem with respect to the excessive length of judicial or administrative proceedings in Greece and directed the respondent State to grant redress in other cases concerning similar violations of the Convention.59 Until the completion of this examination, the Committee had not concluded the supervision process.60 Finger v Bulgaria (2011) The applicant alleged that a set of division of property proceedings to which she had been party had been unreasonably long and that she had 56 Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) 5th and 6th operative provision. 57 Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010) para 121 et seq. 58  accessed 28 October 2012. 59 Press Release by the Registrar on Vassilios Athanasiou and Others v Greece App no 50973/08 (ECtHR, 21 December 2010). 60  accessed 28 October 2012.



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not had effective remedies in that regard. In the applicant’s view, this led to a violation of Article 6 § 1 and of Article 13. According to the Court, there were approximately five hundred cases against Bulgaria awaiting first examination which contained a complaint concerning the length of civil proceedings.61 In the operative part of the judgment, the Court held that the violations found in accordance with the applicant’s allegations “originated in a practice incompatible with the Convention which consists in the unreasonable length of civil proceedings in the Bulgarian courts and in Bulgaria’s failure to introduce an effective remedy allowing litigants to obtain appropriate redress in that regard”; that “the respondent State must set up, within twelve months from the date on which this judgment becomes final …, an effective remedy which complies with the requirements set out in this judgment”.62 The Court did not consider it appropriate to adjourn the examination of similar cases pending the implementation of the relevant measures by the respondent State.63 In 2012 the Court struck applications stemming from the same systemic problem out of its list after friendly settlements had been reached between the applicants concerned and the respondent State,64 or after appropriate unilateral remedial declarations had been proposed.65 Until the completion of this examination, the Committee had not concluded the supervision process.66 Dimitrov and Hamanov v Bulgaria (2011) The applicants alleged that the criminal charges against them had not been determined within a reasonable time, and that they had not had at their disposal effective remedies in that regard. According to the Court, it had found breaches of the reasonable time requirement in criminal proceedings in more than eighty cases; approximately two hundred cases 61 Finger v Bulgaria App no 37346/05 (ECtHR, 10 May 2011) para 115. 62 Finger v Bulgaria App no 37346/05 (ECtHR, 10 May 2011) 4th and 5th operative provision. 63 Finger v Bulgaria App no 37346/05 (ECtHR, 10 May 2011) para 135. 64 For instance Karavasileva v Bulgaria App nos 10450/05 and others (ECtHR, 21 February 2012); Frenkov v Bulgaria App nos 7100/07 and others (ECtHR, 20 March 2012). 65 Eg. Perpelieva v Bulgaria App no 2404/06 (ECtHR, 9 October 2012). 66  accessed 28 October 2012.

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against Bulgaria were awaiting first examination which contained a complaint concerning the length of criminal proceedings.67 In the operative part of the judgment, the Court held that the violations found in accordance with the applicant’s allegations “originated in a practice incompatible with the Convention which consists in the unreasonable length of criminal proceedings in Bulgaria and in Bulgaria’s failure to introduce an effective remedy allowing persons charged with criminal offences to obtain appropriate redress in that regard”; and that “the respondent State must set up, within twelve months from the date on which this judgment becomes final …, an effective remedy which complies with the requirements set out in this judgment”.68 The Court did not consider it appropriate to adjourn the examination of similar cases pending the implementation of the relevant measures by the respondent State.69 Following the pilot judgment, the Court struck several applications out of its list in case there had been sufficient individual remedial measures.70 Until the completion of this examination, the Committee had not concluded the supervision process.71 Ananyev and Others v Russia (2012) The applicants alleged that they had been detained in inhuman and degrading conditions and that they had not had effective domestic remedies at their disposal.72 The Court held that it had found violations of Article 3 on account of similar conditions of detention in more than eighty cases and also of Articles 13 in numerous of them; furthermore, that approximately two hundred and fifty prima facie meritorious applications  against Russia were awaiting first examination which featured,

67 Dimitrov and Hamanov v Bulgaria App nos 48059/06, 2708/09 (ECtHR, 10 May 2011) para 110 et seq. 68 Dimitrov and Hamanov v Bulgaria App nos 48059/06, 2708/09 (ECtHR, 10 May 2011) 5th and 6th operative provision. 69 Dimitrov and Hamanov v Bulgaria App nos 48059/06, 2708/09 (ECtHR, 10 May 2011) para 133. 70 Eg. Savov v Bulgaria App no 24358/06 (ECtHR, 3 July 2012). 71  accessed 28 October 2012. 72 Ananyev and Others v Russia App nos 42525/07, 60800/08 (ECtHR, 10 January 2012) para 3.



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as their primary grievance, a complaint about inadequate conditions of detention.73 In the operative part of the pilot judgment, the Court did not find that there existed a systemic problem or a practice incompatible with the Convention. It only held that “the respondent State must produce, in cooperation with the Committee of Ministers, within six months from the date on which this judgment becomes final, a binding time frame in which to make available a combination of effective remedies having preventive and compensatory effects and complying with the requirements set out in the present judgment”; furthermore, that “the respondent State must grant redress to all victims of inhuman or degrading conditions of detention in Russian remand prisons (SIZOs) who lodged their applications with the Court before the delivery of this judgment, within twelve months from the date on which this judgment becomes final or from the date on which their application will have been communicated to the Government under Rule 54 § 2 (b) of the Rules of Court, whichever comes later.”74 Following the pilot judgment, the Court found violations stemming from the same systemic problem in other cases.75 Until the completion of this examination, the Committee had not concluded the supervision process.76 Grudić v Serbia (2012) The applicants alleged that they had not been paid their disability pensions for more than a decade, and, further, that they had been discriminated against on the basis of their ethnic minority status. In its reasoning the Court abstained from elaborating at length on the concept of the pilotjudgment procedure and on the appropriateness of applying it to the case under consideration, as it did in previous pilot judgments. In the reasoning of the judgment the Court merely stated that “In view of the above, as well as the large number of potential applicants, the respondent Government must take all appropriate measures …”.77 73 Ananyev and Others v Russia App nos 42525/07, 60800/08 (ECtHR, 10 January 2012) para 184. 74 Ananyev and Others v Russia App nos 42525/07, 60800/08 (ECtHR, 10 January 2012) 7th and 8th operative provision. 75 Eg. Dmitriy Rozhin v Russia App no 4265/06 (ECtHR, 23 October 2012). 76  accessed 28 October 2012. 77 Grudić v Serbia App no 31925/08 (ECtHR, 17 April 2012) para 99.

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In the operative part of the pilot judgment, the Court did not find that there existed a systemic problem or a practice incompatible with the Convention. It only held that “the respondent Government must, within six months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, take all appropriate measures to ensure that the competent Serbian authorities implement the relevant laws in order to secure payment of the pensions and arrears in question, it being understood that certain reasonable and speedy factual and/or administrative verification procedures may be necessary in this regard.”78 The Court did not adjourn consideration of similar applications. Until the completion of this examination, no follow-up judgments or decisions had been delivered. The Committee had not taken supervisory measures. Manushaqe Puto and Others v Albania (2012) The applicants alleged that there had been a breach of Articles 6 § 1 and 13 of the Convention and of Article 1 of Protocol No. 1 as a result of the nonenforcement of final administrative decisions awarding them compensation in lieu of the restitution of their properties. In its reasoning the Court stated that the violations found in the pilot judgment originated in a widespread problem affecting a large number of people, namely the regulatory shortcomings and/or administrative conduct of the authorities in the enforcement of final Commission decisions awarding compensation to former owners under the Property Acts. The Court furthermore found that it was seriously concerned that the number of well-founded applications registered could increase and, therefore, represent a critical threat to the future effectiveness of the Convention machinery.79 In the operative part of the pilot judgment, the Court did not find that there existed a systemic problem or a practice incompatible with the Convention. It only held that “the respondent State must take, within eighteen months from the date on which the judgment becomes final …, measures to ensure effective protection of the rights guaranteed by Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, in the context of all the cases similar to the present case, in line with the 78 Grudić v Serbia App no 31925/08 (ECtHR, 17 April 2012) 3rd operative provision. 79 Manushaqe Puto and Others v Albania App nos 604/07 and others (ECtHR, 31 July 2012) para 107 et seq.



pilot judgments315

Convention principles as established in the Court’s case-law”.80 Pending the adoption of these measures, the Court “will adjourn, for eighteen months from the date on which the judgment becomes final …, the proceedings in all cases similar to the present case, which were lodged subsequent to the delivery of the present judgment.”81 Until the completion of this examination, no follow-up judgments or decisions had been delivered. The Committee had not taken supervisory measures. Vučković and Others v Serbia (2012) The applicants complained about discrimination and inconsistent domestic case-law as regards the payment of per diems granted to all reservists who had served in the Yugoslav Army between March and June 1999. The Court did not explicitly find that there existed a systemic problem. It merely stated in its reasoning that, in view of its findings on the violations in the case, as well as more than 3,000 applications pending before the Court raising the same discrimination issue (directly or indirectly), the respondent State had to take general measures.82 In the operative part of the pilot judgment, the Court did not find that there existed a systemic problem or a practice incompatible with the Convention. It only held that “the respondent Government must, within six months from the date on which the present judgment becomes final …, take all appropriate measures to secure non-discriminatory payment of the war per diems in question to all those entitled, it being understood that certain reasonable and speedy factual and/or administrative verification procedures may be necessary in this regard” and adjourned, “for six months from the date on which the present judgment becomes final, all similar applications already pending before the Court”.83 Until the completion of this examination, no follow-up judgments or decisions had been delivered. The Committee had not taken supervisory measures. 80 Manushaqe Puto and Others v Albania App nos 604/07 and others (ECtHR, 31 July 2012) 6th operative provision. 81 Manushaqe Puto and Others v Albania App nos 604/07 and others (ECtHR, 31 July 2012) 8th operative provision. 82 Vučković and Others v Serbia App no 17153/11 (ECtHR, 28 August 2012) para 96. 83 Vučković and Others v Serbia App no 17153/11 (ECtHR, 28 August 2012) 6th and 7th operative provision.

APPENDIX TWO

INDEX OF CASE-LAW 2.1. European Court of Human Rights A. v The United Kingdom Case no 100/1997/884/1096 (ECtHR, 23 September 1998). A.P. v Italy App no 35265/97 (ECtHR, 28 July 1999). Abdulaziz, Cabales and Balkandali v The United Kingdom App nos 9214/80 and others (ECtHR, 28 May 1985). Adolf v Austria App no 8269/78 (ECtHR, 26 March 1982). Airey v Ireland App no 6289/73 (ECtHR, 9 October 1979). Akdivar and Others v Turkey App no 21893/93 (ECtHR, 16 September 1996). Akdivar and Others v Turkey (Article 50) App no 21893/93 (ECtHR, 1 April 1998). Ananyev and Others v Russia App nos 42525/07, 60800/08 (ECtHR, 10 January 2012). Assanidze v Georgia App no 71503/01 (ECtHR, 8 April 2004). The Association of Real Property Owners in Łódź v Poland App no 3485/02 (ECtHR, 8 March 2011). Axen v Germany App no 8273/78 (ECtHR, 8 December 1983). Aydın v Turkey App nos 28293/95 and others (ECtHR, 10 July 2001). Balan v Moldova App no 44746/08 (ECtHR, 24 January 2012). Barberà, Messegué and Jabardo v Spain App nos 10588/83 and others (ECtHR, 13 June 1994). Beguš v Slovenia App no 25634/05 (ECtHR, 15 December 2011). Belilos v Switzerland App no 10328/83 (ECtHR, 29 April 1988). Bellut v Germany App no 21965/09 (ECtHR, 21 July 2011). Boicenco v Moldova App no 41088/05 (ECtHR, 11 July 2006). Bönisch v Austria App no 8658/79 (ECtHR, 6 May 1985). Bottazzi v Italy App no 34884/97 (ECtHR, 28 July 1999). Brigandì v Italy App no 11460/85 (ECtHR, 19 February 1991). Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004). Broniowski v Poland (friendly settlement) App no 31443/96 (ECtHR, 28 September 2005). Brumărescu v Romania (Article 41) App no 28342/95 (ECtHR, 23 January 2001).



index of case-law317

Brusco v Italy App no 69789/01 (ECtHR, 6 September 2001). Buchholz v Germany App no 7759/77 (ECtHR, 6 May 1981). Bulus v Sweden App no 9330/81 (Commission Decision, 8 December 1984). Burdov v Russia (No 2) App no 33509/04 (ECtHR, 15 January 2009). Calvelli and Ciglio v Italy App no 32967/96 (ECtHR, 17 January 2002). Campbell and Cosans v The United Kingdom (Article 50) App nos 7511/76, 7743/76 (ECtHR, 23 March 1983). Case “relating to certain aspects of the laws on the use of languages in education in Belgium” App nos 1474/62 and others (ECtHR, 9 February 1967). Chalykh v Russia App no 55242/08 (ECtHR, 10 April 2012). Christine Goodwin v the United Kingdom App no 28957/95 (ECtHR, 11 July 2002). Cyprus v Turkey App no 25781/94 (ECtHR, 10 May 2001). D.P. & J.C. v the United Kingdom App no 38719/97 (ECtHR, 10 October 2002). Demicoli v Malta App no 13057/87 (ECtHR, 27 August 1991). Denmark, Norway, Sweden, The Netherlands v Greece (The Greek Case) App nos 3321/67 and others (ECtHR, 5 November 1969) (Report of the Sub-Commission). Denmark v Turkey App no 34382/97 (ECtHR, 8 June 1999). Deweer v Belgium App no 6903/75 (ECtHR, 27 February 1980). De Wilde, Ooms and Versyp v Belgium App nos 2832/66 and others (ECtHR, 18 June 1971). De Wilde, Ooms and Versyp v Belgium (Article 50) App nos 2832/66 and others (ECtHR, 10 March 1972). Di Mauro v Italy App no 34256/96 (ECtHR, 28 July 1999). Dmitriy Rozhin v Russia App no 4265/06 (ECtHR, 23 October 2012). Dimitrov and Hamanov v Bulgaria App nos 48059/06, 2708/09 (ECtHR, 10 May 2011). Doğan and Others v Turkey App nos 8803-8811/02 and others (ECtHR, 29 June 2004). Dömel v Germany App no 31828/03 (ECtHR, 9 May 2007). Donnelly and Others v The United Kingdom App nos 5577/72 and others (ECtHR, 5 April 1973). Driza v Albania App no 33771/02 (ECtHR, 13 November 2007). Dudgeon v The United Kingdom App no 7525/76 (ECtHR, 22 October 1981). E.G. v Poland App no 50425/99 (ECtHR, 23 September 2008). F. v Switzerland App no 11329/85 (ECtHR, 18 December 1987). Faimblat v Romania App no 23066/02 (ECtHR, 13 January 2009). Feldbrugge v The Netherlands App no 8562/79 (ECtHR, 29 May 1986).

318

appendix two

Ferrari v Italy App no 33440/96 (ECtHR, 28 July 1999). Finger v Bulgaria App no 37346/05 (ECtHR, 10 May 2011). Frenkov v Bulgaria App nos 7100/07 and others (ECtHR, 20 March 2012). Giama v Belgium App no 7612/76 (Commission Decision, 17 July 1980). Golder v The United Kingdom App no 4451/70 (ECtHR, 21 February 1975). Gospodinova v Bulgaria App no 37912/97 (ECtHR, 16 April 1998). Greens and M.T. v The United Kingdom App nos 60041/08, 60054/08 (ECtHR, 23 November 2010). Grudić v Serbia App no 31925/08 (ECtHR, 17 April 2012). Gülmez v Turkey App no 16330/02 (ECtHR, 20 May 2008). Gusan v Moldova App no 22539/05 (ECtHR, 28 September 2010). Guzzardi v Italy App no 7367/76 (ECtHR, 6 November 1980). Handyside v The United Kingdom App no 5493/72 (ECtHR, 7 December 1976). Hentrich v France App no 13616/88 (ECtHR, 22 September 1994). Hirst v The United Kingdom (No 2) App no 74025/01 (ECtHR, 6 October 2005). Hutten-Czapska v Poland App no 35014/97 (ECtHR, 19 June 2006). Hutten-Czapska v Poland (friendly settlement) App no 35014/97 (ECtHR, 28 April 2008). I. v The United Kingdom App no 25680/94 (ECtHR, 11 July 2002). Iatridis v Greece App no 31107/96 (ECtHR, 25 March 1999). İçyer v Turkey App no 18888/02 (ECtHR, 12 January 2006). Ilaşcu and Others v Moldova and Russia App no 48787/99 (ECtHR, 8 July 2004). Inze v Austria App no 8695/79 (ECtHR, 28 October 1987). Ireland v The United Kingdom App no 5310/71 (ECtHR, 18 January 1978). James and Others v The United Kingdom App no 8793/79 (ECtHR, 21 February 1986). Johnston and Others v Ireland App no 9697/82 (ECtHR, 18 December 1986). Kanar v Turkey App nos 66864/01 and others (ECtHR, 30 March 2006). Karavasileva v Bulgaria App nos 10450/05 and others (ECtHR, 21 February 2012). Karner v Austria App no 40016/98 (ECtHR, 24 July 2003). Katz v Romania App no 29739/03 (ECtHR, 20 January 2009). Kauczor v Poland App no 45219/06 (ECtHR, 3 February 2009). Kharuk and Others v Ukraine App no 703/05 and others (ECtHR, 26 July 2012). Klaas v Germany App no 15473/89 (ECtHR, 22 September 1993). Klass and Others v Germany App no 5029/71 (ECtHR, 6 September 1978).



index of case-law319

Kostovski v The Netherlands App no 11454/85 (ECtHR, 20 November 1989). Kudła v Poland App no 30210/96 (ECtHR, 26 October 2000). Kuhlen-Rafsandjani v Germany App nos 21980/06 and others (ECtHR, 20 January 2011). Kuppinger v Germany App no 41599/09 (ECtHR, 21 April 2011). Kurt v Turkey App no 24276/94 (ECtHR, 25 May 1998). Lithgow and Others v The United Kingdom App nos 9006/80 and others (ECtHR, 8 July 1986). Loizidou v Turkey (Preliminary Objections) App no 15318/89 (ECtHR, 23 March 1995). Loizidou v Turkey App no 15318/89 (ECtHR, 16 September 1996). Lukenda v Slovenia App no 23032/02 (ECtHR, 6 October 2005). Lungu v Moldova App no 17911/08 (ECtHR, 6 April 2010). Lyons and Others v The United Kingdom App no 15227/03 (ECtHR, 8 July 2003). M. and Others v Bulgaria App no 41416/08 (ECtHR, 26 July 2011). Maestri v Italy App no 39748/98 (ECtHR, 17 February 2004). Mamatkulov and Askarov v Turkey App nos 46827/99, 46951/99 (ECtHR, 4 February 2005). Mânăscurtă v Moldova App no 31856/07 (ECtHR, 14 February 2012). Manushaqe Puto and Others v Albania App nos 604/07 and others (ECtHR, 31 July 2012). Marckx v Belgium App no 6833/74 (ECtHR, 13 June 1979). Maria Atanasiu and Others v Romania App nos 30767/05, 33800/06 (ECtHR, 12 October 2010). Matthews v The United Kingdom App no 24833/94 (ECtHR, 18 February 1999). McGoff v Sweden App no 9017/80 (ECtHR, 26 October 1984). Mehemi v France App no 53470/99 (ECtHR, 10 April 2003). Minelli v Switzerland App no 8660/79 (ECtHR, 25 March 1983). Miragall Escolano and Others v Spain App nos and others 38366/97 (ECtHR, 25 January 2000). Motta v Italy App no 11557/85 (ECtHR, 19 February 1991). Nagovitsyn and Nalgiyev v Russia App nos 27451/09, 60650/09 (ECtHR, 23 September 2010). Nasrulloyev v Russia App no 656/06 (ECtHR, 11 October 2007). Norris v Ireland App no 10581/83 (ECtHR, 26 October 1988). N.Ö. v Turkey App no 33234/96 (ECtHR, 17 October 2002). Obermeier v Austria App no 11761/85 (ECtHR, 28 June 1990). Öcalan v Turkey App no 46221/99 (ECtHR, 12 May 2005).

320

appendix two

Oğur v Turkey App no 21594/93 (ECtHR, 20 May 1999). Olaru and Others v Moldova App nos 476/07 and others (ECtHR, 28 July 2009). Olaru v Moldova App no 476/07 (ECtHR, 12 October 2010). Orchowski v Poland App no 17885/04 (ECtHR, 22 October 2009). Orlov v Ukraine App no 44404/07 (ECtHR, 14 December 2010). Olsson v Sweden (No 1) App no 10465/83 (ECtHR, 24 March 1988). Panov v Moldova App no 37811/04 (ECtHR, 13 July 2010). Papamichalopoulos and Others v Greece (Article 50) App no 14556/89 (ECtHR, 31 October 1995). Pauwels v Belgium App no 10208/82 (ECtHR, 26 May 1988). Pelladoah v the Netherlands App no 16737/90 (ECtHR, 22 September 1994). Pellegrin v France App no 28541/95 (ECtHR, 8 December 1999). Perpelieva v Bulgaria App no 2404/06 (ECtHR, 9 October 2012). Peyer v Switzerland App no 7397/76 (Commission Decision, 8 March 1979). Pisano v Italy App no 36732/97 (ECtHR, 24 October 2002). Poghosyan v Georgia App no 9870/07 (ECtHR, 24 February 2009). Pretto and Others v Italy App no 7984/77 (ECtHR, 8 December 1983). Preußische Treuhand GmbH & Co. KG a.A. v Poland App no 47550/06 (ECtHR, 7 October 2008). Prötsch v. Austria App no 15508/89 (ECtHR, 15 November 1996). Racu v Moldova App no 13136/07 (ECtHR, 20 April 2010). Radio ABC v Austria App no 19736/92 (ECtHR, 20 October 1997). Rantsev v Cyprus and Russia App no 25965/04 (ECtHR, 7 January 2010). Roman v Ukraine App no 26678/07 (ECtHR, 10 April 2012). Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010). Sahin v Germany App no 30943/96 (ECtHR, 11 October 2001) (Chamber). Sahin v Germany App no 30943/96 (ECtHR, 8 July 2003) (Grand Chamber). Saïdi v France App no 14647/89 (ECtHR, 20 September 1993). Salah v the Netherlands App no 8196/02 (ECtHR, 6 July 2006). Santilli v Italy App no 11634/85 (ECtHR, 19 February 1991). Savov v Bulgaria App no 24358/06 (ECtHR, 3 July 2012). Schellmann and JSP Programmentwicklung Gmbh & Co. KG v Germany App no 27366/07 (ECtHR, 10 July 2012). Scoppola v Italy (No 2) App no 10249/03 (ECtHR, 17 September 2009). Scordino v Italy (No 1) App no 36813/97 (ECtHR, 29 March 2006). Scozzari and Giunta v Italy App nos 39221/98, 41963/98 (ECtHR, 13 July 2000). Sejdovic v Italy App no 56581/00 (ECtHR, 10 November 2004) (Chamber). Sejdovic v Italy App no 56581/00 (ECtHR, 1 March 2006) (Grand Chamber).



index of case-law321

Shevanova v Latvia App no 58822/00 (ECtHR, 7 December 2007). Norbert Sikorski v Poland App no 17599/05 (ECtHR, 22 October 2009). Sisojeva and Others v Latvia App no 60654/00 (ECtHR, 15 January 2007). Soering v The United Kingdom App no 14038/88 (ECtHR, 7 July 1989). Sommerfeld v Germany App no 31871/96 (ECtHR, 8 July 2003). Sporrong and Lönnroth v Sweden App no 7151/75, 7152/75 (ECtHR, 23 September 1982). Suljagić v Bosnia and Herzegovina App no 27912/02 (ECtHR, 3 November 2009). Sutter v Switzerland App no 8209/78 (ECtHR, 22 February 1984). Swedish Engine Drivers’ Union v Sweden App no 5614/72 (ECtHR, 6 February 1976). Tehrani and Others v Turkey App nos 32940/08 and others (ECtHR, 13 April 2010). The former King of Greece and Others v Greece App no 25701/94 (ECtHR, 23 November 2000). The Sunday Times v The United Kingdom App no 6538/74 (ECtHR, 26 April 1979). The Sunday Times v The United Kingdom (Article 50) App no 6538/74 (ECtHR, 6 November 1980). Ülke v Turkey App no 39437/98 (ECtHR, 24 January 2006). Urbárska obec Trenčianske Biskupice v Slovakia App no 74258/01 (ECtHR, 27 November 2007). Vartic and Others v Moldova App nos 12674/07 and others (ECtHR, 20 September 2011). Vassilios Athanasiou and Others v Greece App no 50973/08 (ECtHR, 21 December 2010). Verein gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) App no 32772/02 (ECtHR, 30 June 2009). Vermeire v Belgium App no 12849/87 (ECtHR, 29 November 1991). Vocaturo v Italy App no 11891/85 (ECtHR, 24 May 1991). Vogt v Germany App no 17851/91 (ECtHR, 26 September 1995). Vučković and Others v Serbia App no 17153/11 (ECtHR, 28 August 2012). Winterwerp v The Netherlands App no 6301/73 (ECtHR, 27 November 1981). Witkowska-Toboła v Poland App no 11208/02 (ECtHR, 4 December 2007). Wolkenberg and Others v Poland App no 50003/99 (ECtHR, 4 December 2007). X v The United Kingdom App no 7215/75 (ECtHR, 5 November 1981). X v The United Kingdom (Article 50) App no 7215/75 (ECtHR, 18 October 1981).

322

appendix two

X and Y v The Netherlands App no 8978/80 (ECtHR, 26 March 1985). Xenides-Arestis v Turkey App no 46347/99 (ECtHR, 22 December 2005). Xenides-Arestis v Turkey (just satisfaction) App no 46347/99 (ECtHR, 7 December 2006). Yıldız and Others v Turkey App nos 489/02 and others (ECtHR, 30 March 2006). Young, James and Webster v The United Kingdom App nos 7601/76, 7806/77 (ECtHR, 13 August 1981). Yuriy Nikolayewich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009). Zadrić v Bosnia and Herzegovina App no 18804/04 (ECtHR, 16 November 2010). Zanghì v Italy App no 11491/85 (ECtHR, 19 February 1991). Zhovner v Ukraine App no 56848/00 (ECtHR, 29 June 2004). Zimmermann and Steiner v Switzerland App no 8737/79 (ECtHR, 13 July 1983). 2.2. Permanent Court of International Justice Acquisition of Polish Nationality (Advisory Opinion) 1923 accessed 28 October 2012. Case Concerning the Factory at Chorzów (Germany v Poland) (Jurisdiction) 1927 accessed 28 October 2012. Case Concerning the Factory at Chorzów (Germany v Poland) (Merits) 1928 accessed 28 October 2012. Exchange of Greek and Turkish Populations (Advisory Opinion) accessed 28 October 2012. Jurisdiction of the European Commission of the Danube (Advisory Opinion) 1927  accessed 28 October 2012. 2.3. International Court of Justice Certain expenses of the United Nations (Advisory Opinion) 1962 accessed 28 October 2012.



index of case-law323

Corfu Channel Case (UK v Albania) (Merits) 1949 accessed 28 October 2012. Effect of awards of compensation made by the U.N. Administrative Tribunal (Advisory Opinion) 1954 accessed 28 October 2012. Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase (Advisory Opinion) 1950 accessed 28 October 2012. LaCrand (Germany v United States of America) 2001 accessed 28 October 2012. Reparation for Injuries suffered in the service of the United Nations (Advisory Opinion) 1949 accessed 28 October 2012. South West Africa Cases, Second Phase 1966 accessed 28 October 2012. 2.4. European Court of Justice Case 165/87 Commission of the European Communities v Council [1988] ECR 5545. Joined Cases 281, 283, 284, 285 and 287/85 Federal Republic of Germany and others v Commission [1987] ECR 3203. Case 8/55 Fédération Charbonnière de Belgique v High Authority of the European Coal and Steel Community [1956] ECR 292

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accessed 28 October 2012. Parliamentary Assembly, ‘Opinion. Draft Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms amending the control system of the Convention’ Opinion No. 251 (2004), 28 April 2004 accessed 28 October 2012. Parliamentary Assembly, ‘Recommendation. Structures, procedures and means of the European Court of Human Rights’ Recommendation 1535 (2001), 26 September 2001 accessed 28 October 2012. ‘Report of the Evaluation Group to the Committee of Ministers on the European Court of Human Rights’ EG Court(2001)1, 27 September 2001 accessed 28 October 2012. ‘Report of the Group of Wise Persons to the Committee of Ministers’ CM(2006)203, 15 November 2006 accessed 28 October 2012. Steering Committee for Human Rights, ‘Interim Report of the CDDH to the Committee of Ministers. “Guaranteeing the long-term effectiveness of the European Court of Human Rights”’ CM(2002)146, 18 October 2002 accessed 28 October 2012. Steering Committee for Human Rights, ‘Guaranteeing the long-term effectiveness of the European Court of Human Rights. Final report containing proposals of the CDDH’ CM(2003)55, 8 April 2003 accessed 28 October 2012. Steering Committee for Human Rights, ‘Guaranteeing the long-term effectiveness of the control system of the European Convention on Human Rights. Addendum to the final report containing CDDH proposals (long version)’ CDDH(2003)006 Addendum final, 9 April 2003 accessed 28 October 2012. Steering Committee for Human Rights, ‘Guaranteeing the long-term effectiveness of the European Court of Human Rights—Implementation of the Declaration adopted by the Committee of Ministers at its 112th Session (14–15 May 2003). Interim Activity Report’ CDDH(2003)026 Addendum I Final, 26 November 2003 accessed 28 October 2012. Steering Committee for Human Rights, ‘Guaranteeing the long-term effectiveness of the European Court of Human Rights—Implementation of the Declaration adopted at its 112th Session (14–15 May 2003). Final Activity Report’ CM(2004)65, 15 April 2004 accessed 28 October 2012.

INDEX 14th Protocol to the Convention see Protocol No. 14 to the Convention Adjournment of proceedings and right of individual application 266–271, 285–286 and the refom process 25, 28 Court’s practice of 257–259 Element of the pilot-judgment procedure 7–8, 45–47 Legal basis for 262–272 Relevance of 259–262, 285–286 Administrative practice see Practice incompatible with the Convention Annexed competences see Competences of the Court Assanidze v Georgia 21–22, 44, 137, 152, 154–156, 167 Binding effect of judgments 72–74, 80, 97, 128, 208–214, 280–281 of orders 135–145, 170 Choice of means see Discretion of the Contracting States Clone cases see Repetitive applications Committee of Ministers and friendly settlements 245–252 and striking out decisions 278–284 Exclusive powers 149–150, 225–237, 245–252, 282–284 Competences of the Committee see Committee of Ministers Competences of the Court Annexed competences 163, 166–168 in the individual complaints procedure 103–133 to adjourn proceedings 262–272 to assess remedial measures  242–252 to determine remedial obligations 162–237 to strike cases out of its list 272–284 Continuing situation 17–18, 38, 77, 87, 166

Declaratory nature of judgments and Contracting States’ discretion  196–198, 210 and obligations deriving from judgments 74 and the Court’s competences 146–147, 154–165, 191–192 Meaning 154–165 Determination of remedial measures Binding effect of 135–145 Committee’s powers and 225–237 Contracting States’ discretion and 193–225 Court’s powers and 162–237 Element of the pilot-judgment procedure 7, 43–45 Explicit 213–222 Implicit 208–213 Legal basis 162–193 prior to the Pilot-Judgment Procedure 21–22, 150–154 Types of 86–88, 91–93, 94–95 Discretion of the Contracting States and execution of judgments 135–137, 147–150, 153–162, 167, 177, 193–225 and implementation 55–56 Discretion of the Court and Art 38 264 and Art 39 254 to examine legislation 133 Domestic Legislation and binding effect of judgments 73 and declaratory judgments 146, 156 and friendly settlements 243 as a breach of the Convention 111 Court’s examination of 112–117, 129–133 Individual Convention violations caused by 108 Obligation to adapt 56–67, 77–82, 88–91, 200–202, 208, 243 Orders of the Court to amend 87, 147, 149, 190–192, 215, 219 Power of the Court to amend 146, 189–191 Systemic problems caused by 67–69, 84, 87, 212–213

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Domestic remedies and repetitive cases 26, 28, 91–93, 104, 212, 259–262 and striking out of applications 47, 252, 257–259, 272–277, 285–286 Exhaustion of 18 Lack of and structural problems 18–19, 21, 104–105 Orders to establish 87–88, 91–93, 214–217, 222 Obligation to establish 93, 212 Retroactive 18 Execution of judgments and Convention implementation 82 and structural problems 6, 38, 54 and the Contracting States’ discretion 147, 150, 154–162, 193–225 Failure to ensure 6, 38, 64 Obligation of Contracting States 72–82 supervised by the Committee 6, 29, 147, 150, 225–237, 245–252, 278–284 supervised by the Court 103, 136, 238–256, 272 Friendly settlements and domestic legislation 243 and general measures 47, 123, 238–252 and the Committee 245–252 and the “pilot” applicant 127, 239, 252–253 assessment by the Court 103, 239–252 Relevance of 47, 252 General (remedial) measures and friendly settlements 47, 238–252 and striking out decisions 47, 259, 272–284 and structural problems 38, 70, 83–85 Assessment of 47, 238–252, 259, 272–284 Determination of 43–44, 86–88, 91–93, 94–95, 143–237 Discretion in taking 199–205 Obligation to take 76–83, 88–91, 93, 95–97 Grand Chamber 48 Implied powers 163, 181–189 Indication of remedial measures see Determination of remedial measures Individual complaints procedure 103–128 Inter-state proceedings 66, 111, 130

Ireland v The United Kingdom 63 Italy 21, 148 see also Scozzari and Giunta v see also Lenth of national proceedings Judicial systems, national 17, 19, 62 Just satisfaction and the Court’s competences 165–168, 171, 176 Obligation to give 75 of the “pilot” applicant 126–127, 242–250, 253–254 Kudła v Poland 19 Legislation see Domestic legislation Length of national proceedings cases against Italy 16–19 Dimitrov and Hamanov v Bulgaria 311 Finger v Bulgaria 310 Kudła v Poland 19 Lukenda v Slovenia 300 Rumpf v Germany 307 Vassilios Athanasiou v Greece 310 Mission of the Court 118 National remedies See Domestic remedies Object and purpose of the Convention and adjournment 263–265 and orders by the Court 172–180, 183 Obligation of result and Convention implementation 63 and the Contracting States’ discretion 199–205, 207 Operative provision 18, 42, 45, 49, 138, 141–145, 152 Orders of remedial measures see Determination of remedial measures Overload of the Strasbourg system 3–8, 36, 267–269, 286 Pending cases see Adjournment of proceedings see Structural problems Phrasing of orders 45, 143–145 “Pilot” applicant 126–127, 238–241, 251–253, 275 Pinto-act 18–19

index 335 Powers of the Court see Competences of the Court Practice incompatible with the Convention see also Structural problems definition 37, 39 found in pilot judgments 37, 65–67, 69 Principle of conferred powers 117, 227, 262 Protocol No. 14 to the Convention  24–31, 285 Recommendation Rec(2004)6 28–29, 180 Repetitive applications 36–37 Resolution Res(2004)3 28–29, 180 Retroactive measures 283n Right of individual application and adjournment 266–271, 285–286 striking out 272–277, 285–286 the Court’s competences 109, 120–125 Rules of the Committee for applying Article 46 § 2 29, 246n, 249n, 282, 284 Rules of Court Relevance 181 Rule 41 262 Rule 61 36, 119, 128, 181, 245

Rule 74 143 Scozzari and Giunta v Italy 22, 76, 89 Separation of powers 226, 249 Striking out of “parallel” cases and the Committee 278–284 Court’s practice of 257–259 Legal basis 272–284 Relevance 47, 259–262 Structural problems 37–40 Number of persons affected 39, 42, 54, 82, 252 Types of 86–88, 91–93, 94–95 Subsidiarity 17, 19–21, 44, 123, 149, 184–185 Supervision of execution of judgments by the Committee 230–234, 245–252, 278–284 by the Court 242–252, 272–277, 282–284 Systemic problems see Structural problems Time limits 223 Travaux préparatoires and implemenation 59, 61 and the Committee’s powers 234 and the Court’s powers 177, 189 Relevance 189