The Pilot Judgment Procedure Before the European Court of Human Rights as an Instrument for Dialogue
CONSTITUTIONAL CONVERSATIONS, P. Popelier, M. ClaesIntersentia, eds., 2012
25 Pages Posted: 13 Sep 2011
Date Written: September 9, 2011
Over the last decade, the European Court of Human Rights (ECtHR or Court) has received an ever-growing number of applications. The greatest part of these applications find their origin in a limited yet important number of structural fundamental rights problems in a relatively small number of states. It is therefore essential for the Court to find ways and mechanisms to entice the national authorities into repairing structural defects and complying with Convention standards. Since the ECHR system lacks any real instruments of enforcement, the Court thereby must rely on methods that respond to national concerns and that fit in well with the supervisory system of the ECHR as a whole – i.e., on methods that help the Convention organs to engage in an effective dialogue with the states. Arguably, thus, it is crucial that any new mechanisms to be developed have strong ‘dialogical’ potential.
From this perspective of dialogue, this paper focuses on the Court’s pilot judgment procedure. This procedure was introduced in 2004 to deal speedily and effectively with repetitive cases resulting of a systemic or structural dysfunction on the national level. The paper analyses the dialogical qualities of the pilot judgment procedure in the context in which it has been developed, i.e. the context of a supranational court that has to solve systemic Convention violations with the help of rather weak enforcement powers, in an era of strong national criticism of the Court. It shows that the pilot procedure may, at least potentially, contribute to the solution of some of the current problems facing the Court, mainly because of its dialogical force.
The paper starts by providing some general information on the pilot judgment procedure and its function. Subsequently, the various relationships are discussed between the interlocutors in the various ‘dialogues’ constituted by the pilot judgment procedure, using the different stages of the procedure as guidance. At the first stage of the pilot judgment, i.e. the stage of finding a systemic violation and suggesting remedies and solutions by the Court, the dialogue between the Court and the national authorities is most relevant. As regards the second stage, i.e. that of execution of the judgment, the paper focuses on the relationship and dialogue between the Committee of Ministers and the national authorities and on the role of the Parliamentary Assembly of the Council of Europe. At the third and final stage of the pilot procedure, the Court has to decide if the national authorities have successfully solved the underlying systemic problem. There, the paper concentrates on the relationship between the Committee of Ministers and the Court.
Keywords: European Court of Human Rights, pilot judgment procedure, judicial dialogue, human rights, interaction between legal systems
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