Chapter VII - The Dialogic Potential of the Pilot-judgment Procedure

Summary

The pilot judgment-procedure (PJP) was already shortly referred to in chapter II as a manifestation of the effectiveness principle in the execution phase. This procedure is discussed separately from the other procedural steps because it is, as explained hereafter, a unique and uncommonly comprehensive procedure in the Convention system. As was the case in the previous two chapters, which concerned the (pre-)merits and execution phases, the first section of this chapter contains an introduction and the second section assesses the procedure from the perspective of the seven indicators for dialogue. The last section gives a short summary of the findings.

INTRODUCTION TO THE PILOT-JUDGMENT PROCEDURE

The CDDH advanced the PJP in 2003, in the context of a package of reform measures aiming to preserve the Convention system in the prospect of a continuously growing workload. The procedure was presented as a measure for the prevention of violations and the improvement of domestic remedies. The Court picked up the proposal and suggested amending the Convention to include the PJP, but the CDDH considered this unnecessary. In 2004, the Committee issued a resolution inviting the Court to identify in its judgments, where relevant, both the underlying systemic problem and its source. This approach could assist the respondent state in remedying the problem and would help the Committee to exercise its supervisory task. The Court took up the invitation in Broniowski v. Poland, its first pilot judgment, pronounced in 2004.

In the absence of a firm Convention basis, the Court has relied on Article 46 to legally justify its recourse to the procedure. After some years of practice, it inserted a new rule on the PJP into the Rules of Court, which entered into force on 1 April 2011. Since then, a pilot judgment can be defined as a judgment:

1. that the Court qualifies as such;

2. in which the Court identifies the dysfunction that has given or may give rise to similar applications; and

3. in which it orders – in the operative provisions of the judgement – the remedial measures the respondent state must take.

This study only relies on judgement ‘in the strict sense’, namely judgements that incorporate each element.