Responding to Systemic Human Rights Violations: An Analysis of 'Pilot Judgments' of the European Court of Human Rights and Their Impact at National Level

by Philip Leach, Helen Hardman, Svetlana Stevenson, Brad Blitz

Overview

In 2004, as a response to widespread structural or endemic human rights violations, the European Court began to issue pilot judgments, the aim of which was not only to exert further pressure on national authorities to tackle systemic problems, but also to stop the European Court itself from being inundated with the same types of cases. Fashioned out of its own case law, and underpinned by the principle of subsidiarity, the Court has broken new ground with its pilot judgment procedure, both in terms of its diagnosis of the causes of systemic human rights violations and the extent to which it is prepared to direct States to legislate, or take other steps, to resolve them. This study - supported by the Leverhulme Trust - analyzes the principal characteristics of the pilot judgment procedure and its application in key cases. With case studies on Poland, Slovenia, and Italy, a particular focus of the work is the adequacy of the response of national authorities to pilot judgments. The book draws conclusions about the effectiveness of the procedure as a means of tackling systemic violations and makes recommendations for its further development.

Product Details

ISBN-13:	9789400000414
Publisher:	Intersentia
Publication date:	06/09/2010
Pages:	220
Product dimensions:	6.30(w) x 9.40(h) x 0.60(d)

About the Author

Philip Leach is Professor of Human Rights and Director of the Human Rights and Social Justice (HRSJ) Research Institute at London Metropolitan University. Helen Hardman was the HRSJ Researcher on the pilot judgments research project (2008-2010). Svetlana Stephenson is Senior Lecturer in International Comparative Sociology at London Metropolitan University. Brad K. Blitz is Professor of Human and Political Geography at Kingston University.

Table of Contents

Acknowledgements xi

Introduction 1

Chapter 1 The Pilot Judgment Procedure. Responding to States' failure to resolve systemic human rights violations 9

1.1 The origins of the procedure: The Court's backlog and states' failure to implement Court judgments 9

1.2 The purpose of the pilot judgment procedure and the defining elements of a pilot judgment 13

1.2.1 The first tier: 'Full' Pilot Judgments 15

1.2.1.1 Broniowski v Poland 16

1.2.1.2 Hutten-Czapska v Poland 18

1.2.1.3 Burdov v Russia (No. 2) 18

1.2.1.4 Olaru and others v Moldova 19

1.2.1.5 Yuriy Nikolayevich Ivanov v Ukraine 20

1.2.1.6 Suljagic v Bosnia and Herzegovina 21

1.2.1.7 The common characteristics of 'full' pilot judgments 22

1.2.2 The second tier: 'Quasi-Pilot' Judgments 24

1.2.3 The third tier: other judgments addressing systemic issues 26

1.2.4 Questions arising from the initial application of the pilot judgment procedure 28

1.3 Securing states' compliance with the European Convention 32

1.4 The mechanics of the pilot judgment procedure 34

How are cases chosen for the application of the pilot judgment procedure - a question of selective justice? 34

Chapter 2 Poland: The 'Homeland' of Pilot Judgments? 41

2.1 Introduction 41

2.1.1 The status of the Convention with respect to domestic law 41

2.1.2 Poland's track record in responding to Strasbourg 43

2.1.2.1 The problem of ensuring effective parliamentary engagement in the implementation process 46

2.1.2.2 The failure of the legislature and the executive to respond to Constitutional Court judgments 47

2.1.2.3 'Full' Pilot Judgments: Broniowski and Hutten-Czapska 48

2.2 Compensation for expropriated property (Broniowski) 49

2.2.1 Evaluation of the effectiveness of the 'Broniowski law' 51

2.2.2 Amendments to the Broniowski law 55

2.3 State rent-control and subsidisation for property renovation (Hutten-Czapska) 56

Evaluation of the effectiveness of the 'rent mirror scheme' and the law on renovation and thermo-modernization 58

2.4 'Quasi-pilot' judgments and 'third tier' judgments 59

2.4.1 Excessive length of proceedings (Kudla) 60

Evaluation of the impact of the Kudla judgment on domestic law 62

2.4.2 Excessive length of pre-trial detention (Kauczor) 64

Evaluation of the impact of the Kauczor judgment on domestic law 65

2.4.3 Poor prison conditions and inhuman treatment (Slawomir Musial) 67

Evaluation of the impact of the Slawomir Musial judgment on domestic law 67

2.5 Evaluation of the monitoring of the implementation of Strasbourg judgments 68

2.6 Conclusion 71

2.6.1 What factors have led the Court to apply the pilot judgment procedure? 72

2.6.1.1 The Role of Individuals 72

2.6.1.2 Collaboration between the Polish Constitutional and European Courts 73

Chapter 3 The Slovenian Experience of 'Quasi-Pilot' Judgments. Has the Court over-reached its powers in length of proceedings cases? 75

3.1 Introduction 75

3.1.1 The status and application of the European Convention in domestic law 75

3.1.2 Slovenia's track record in responding to Strasbourg 76

3.1.2.1 The Executive 76

3.1.2.2 The Legislature 77

3.2 The Causes of the excessive length of legal proceedings in Slovenia 79

The particular problem in Celje 83

3.3 Excessive length of proceedings: the cases of Belinger & Lukenda 85

3.3.1 The 'quasi-pilot' judgment of Lukenda v Slovenia 86

3.3.1.1 The impact of Lukenda on domestic law 87

3.3.1.2 Changes in the law to make administrative procedures in courts more efficient 89

3.3.1.3 Alternative means of dispute resolution 89

3.3.1.4 How effective was the application of the pilot judgment procedure in the case of Lukenda? 90

3.4 The sequel to Lukenda: the Robert Lesjak judgment 94

The 2009 amendments to the 2006 Law 95

3.5 'Third tier' Judgments - the cases of Matko and Šilih 96

3.5.1 Investigation into claims of police brutality: Matko 97

The effect of the Matko judgment on domestic law 98

3.5.2 Investigation of medical malpractice: Šilih v Slovenia 98

The effect of the Šilih judgment on domestic law 99

3.6 Evaluating how the implementation of strasbourg judgments is monitored 100

3.7 Conclusions 101

3.7.1 What factors led the Court to issue 'quasi-pilot' and 'third tier' judgments against Slovenia? 101

Cooperation between the Slovenian Constitutional Court and the European Court 102

3.7.2 The efficacy of the 'quasi-pilot' judgment in Lukenda 103

3.7.3 The erga omnes implications of Lukenda 104

Chapter 4 Italy: Pinto, Azzolini and the Elevation of the Status of the European Convention in Domestic Law 105

4.1 Introduction 105

4.1.1 The status of the Convention with respect to national law 105

4.1.2 Italy's track record in responding to Strasbourg 107

4.1.2.1 Implementation of Constitutional Court judgments 109

4.1.2.2 The implementation of Strasbourg judgments - the roles of the executive and legislature 109

4.2 'Quasi-pilot' judgments in Italian cases 111

4.2.1 The right to a fair trial (Article 6) 111

4.2.1.1 Sejdovic v Italy 112

4.2.1.2 R.R. v Italy 113

4.2.2 Compensation for expropriated property (Article 1 of Protocol No. 1) 115

4.2.2.1 Scordino v Italy (No. 1) 116

4.2.2.2 Scordino v Italy (No. 3) 118

4.2.2.3 Guiso-Gallisay 119

4.2.2.4 Prohibition of building on land for expropriation 120

4.2.3 Right to trial within a reasonable time (Article 6(1)) 121

Scordino v Italy (No. 1) and the ineffectiveness of the Pinto Law 122

4.3 The effect of pilot judgments on the status of the European Convention on Human Rights in domestic law: Constitutional Court judgments 348 & 349 124

4.4 Monitoring Implementation of Strasbourg Judgments 128

The 'Azzolini Law' 128

4.4.1 Report on the Pinto Law 129

4.4.2 Report on the rendition of terrorist suspects: Saadi v Italy 130

4.5 Conclusion 131

Chapter 5 Expanding the Scope of the Pilot Judgment Procedure. The experience of Russia, Ukraine, Moldova, Bosnia and Herzegovina, Turkey, Georgia and the United Kingdom 133

5.1 Introduction 133

5.2 The failure to implement domestic court judgments 134

5.2.1 Burdov v Russia 134

5.2.1.1 Burdov v Russia (No. 2) 137

5.2.1.2 The response to Burdov (No. 2) from the executive, the judiciary and the legislature 141

5.2.2 Yuriy Nikolayevich Ivanov v Ukraine 145

5.2.3 Olaru and others v Moldova 150

The 'forces' within the state 'in favour' of the pilot judgment procedure 152

5.3 Compensation for lost foreign currency savings after the break-up of Yugoslavia: Suljagic v Bosnia and Herzegovina 153

5.4 Quasi-pilot judgments & communicated cases 156

5.4.1 Xenides-Arestis v Turkey 156

The effectiveness of the 2005 Law 158

5.4.2 Manole and others v Moldova 160

5.4.3 Bekoyeva v Georgia 163

5.4.4 O'Donoghue v United Kingdom 164

5.5 Conclusion 166

5.5.1 The response of the executive to the pilot judgment procedure 166

5.5.2 Differing domestic pressures in favour of Article 46 judgments 167

5.5.3 The efficacy of the Pilot Judgment Procedure 168

Chapter 6 Conclusions and Recommendations 171

6.1 The Origins and objectives of the pilot judgment procedure 171

6.2 Defining pilot judgments, quasi-pilot judgments and other systemic cases 171

6.2.1 (i) 'Full' pilot judgments 172

6.2.2 (ii) 'Quasi-pilot' judgments 173

6.2.3 (iii) Other judgments addressing systemic issues 173

6.3 The selection of cases for the application of the pilot judgment procedure 173

6.4 The practice and procedure of the Court in pilot judgment cases 174

6.5 Questions arising from the application by the Court of the pilot judgment procedure 175

6.6 The effectiveness of the pilot judgment procedure 177

6.7 How states respond to pilot judgments 178

6.7.1 Poland 179

6.7.2 Slovenia 180

6.7.3 Italy 181

6.8 The contribution of other Council of Europe entities 182

6.9 Recommendations 183

6.9.1 Contracting States 183

6.9.2 Civil Society 184

6.9.3 Council of Europe 184

List of Cases 187

Bibliography 191

About the Authors 207