Giving up on individual justice? The effect of state non-execution of a pilot judgment on victims

Abstract

The recent judgment of the ECtHR in Burmych and others v. Ukraine has shed new light on the question of how it regards individual justice in the context of the pilot judgment procedure. Confronted with a State reluctant to execute a previous pilot judgment, the Court has chosen to absorb all similar pending cases in the execution process at the Committee of Ministers. This article examines the pilot judgment procedure from the perspective of the involved applicants and aims to answer the question whether in this context the Court has given up on individual justice all together.

Introduction

Much has been written about the pilot judgment procedure and its contested negative impact on the rights of the applicants involved. Selecting one applicant or a group of lucky applicants in order to address the issue rather than the individuals affected by the pilot judgment has prompted a literature where the Court has been said to ignore the interests of the victims by freezing their cases and sending them back to the domestic system. ¹ The Court itself has continuously stressed in its case-law that by working efficiently, it also acts in conformity with the rights of the applicants by addressing the issue first, as solving the issue would be beneficial to all affected. ²

With the recent judgment of Burmych and others v. Ukraine, the Court has had to admit defeat when confronted with a reluctant State. ³ In the case, it addressed a situation in which Ukraine had not executed the previous pilot judgment of Yuriy Nikolaeyevich Ivanov. ⁴ In the Ivanov pilot case, the Court found that Ukraine had a systemic problem of non-execution of domestic judgments and ordered Ukraine to take general measures to address the issue. Ukraine failed to remedy the problem, resulting in not only the absence of a solution for the applicants already at the Court but also creating a new influx of similarly situated victims on the Court’s docket. In light of this, the Court chose to strike all of these cases out of its list and to absorb them in the execution process for the Ivanov pilot judgment. It has thus refused to deal with all of these similar cases and has passed the problem on to the Committee of Ministers, which leads to question how this development must be regarded from the perspective of the applicants.

This article will look at this new procedural tactic of absorbing the pending cases into the execution phase of a previous similar pilot case from the viewpoint of the applicants involved. It will examine whether the Court is continuously moving away from the right to individual petition by taking the Burmych judgment as the focal point and putting it in context. To this end, in the first section, this article will start with an introduction of the pilot judgment procedure by discussing its aims and inner workings. Subsequently, the pilot judgment procedure will be looked at from the perspectives of both the Court and the applicants. The last sub-section will then bring these two viewpoints together and examine whether they are mutually exclusive. The second section will apply the framework of the first section to the Burmych case. A thorough discussion of the history of the case will be followed by an analysis of the Court’s reasoning and an examination of the case’s consequences from the victims’ perspective. This analysis will lead to an answer concerning the question how this absorption of the pending cases in the execution process of a previous pilot judgment must be regarded from the perspective of the victims who have turned to the Court for justice.

1. The pilot judgment procedure at the ECtHR

This section will sketch the context used to later examine the Burmych case. To this end, it will first introduce the pilot judgment procedure with a focus on its aims and inner workings. It will further place the procedure in context by looking at it from two viewpoints: the Court on the one hand and the applicants who have submitted complaints before the Court on the other. These two perspectives will then be put in relation to each other.

2.1. Aims and inner workings of the procedure

It has been stated multiple times in the literature that the European Court of Human Rights has been the victim of its own success. ⁵ Since its conception, the amount of pending cases has consistently increased until 2011, after which there was a short decrease in the numbers. However, current large-scale issues in Hungary, Romania and Turkey have upped the statistics again. ⁶ The Court has further uncovered that many of these pending cases are so-called repetitive cases. ⁷ This means that they stem from a common malfunction in the national legal or administrative system of a Council of Europe Member State. In order to tackle these cases, the Court developed a procedural tool for identifying the underlying issues and creating a binding obligation upon the involved States to solve these systemic problems.

The pilot judgment procedure was first used by the Court in 2004 in the case of Broniowski v. Poland and was later codified in the Rules of Court. ⁸ When reduced to its very core it can be described as a procedure whereby an individual case or a combination of cases, classified under priority treatment, is used by the Court to diagnose a structural problem in the Respondent State and to provide guidance to that State as to how to remedy the issue. ⁹ In other words, the chosen case will serve as a magnifying glass for the Court to discuss a wider issue in one of the Contracting States, which lies at the core of the human rights violations at hand. In this pilot case, the Court will then try to formulate general measures aimed at remedying the underlying systemic issue, which are made binding upon the State by including them in the operative part of the judgment. ¹⁰

These wide-spread systemic issues which the Court is trying to remedy through pilot judgments, often bring with them a group of similar applications and thus a group of similarly situated applicants. Through this one case the Court states that it seeks to find a solution that not only addresses the problem in this specific case but also applies to all similar cases covering this same issue. ¹¹ In most pilot cases, these similar applications are adjourned for a certain period of time, meaning that the Court will not (yet) render a judgment. ¹² Instead, these applicants wait until the involved State has executed these general measures, which in most cases includes the obligation of setting up of a domestic remedy. These similar pending cases can be dealt with through one of three avenues:

The ideal scenario for the Court is that they are sent back to the domestic system. This can however only happen when the State has i) actually solved the underlying problem; ii) has put in place a domestic remedy for all persons in the same position to submit their complaint in the domestic courts and; iii) has made this domestic remedy retroactively applicable so that the applicants who had already come to the European Court can in reality use this new domestic remedy to submit their complaint before the national courts. Their applications will then be found inadmissible for non-exhaustion of domestic remedies; ¹³ or,

The Court can also decide to allow the State to settle the other pending cases, through a Friendly Settlement or a Unilateral Declaration. Normally, this is the option where the State did put up a solution to the issue nationally, but it did not make the remedy retroactively available to the applicants of the pending cases. The Court has also encouraged States to turn to Friendly Settlements and Unilateral Declarations while taking measures to address the underlying issue. ¹⁴ It is important to mention here that the Court will only allow Friendly Settlements and Unilateral Declarations in pilot cases when the State not only includes a solution with respect to the specific applicant involved in the Friendly Settlement or Unilateral Declaration procedure, but also presents a solution for the wider underlying issue; ¹⁵

If a State does not solve the underlying issue, the Court can decide to handle all of the other similar cases through the WECL-procedure. This is the Well-Established Case Law procedure, which, simply stated, means that these will be dealt with by a Committee of three judges through a simplified, fast-track procedure. Important here is that the Committees only decide on cases which do not raise novel legal issues. They can thus simply apply ‘well-established case-law’. ¹⁶ This is the worst-case scenario, because it means that the underlying issue is still there and continues to present a problem for the Court’s caseload. The underlying problem remains, which is detrimental both to the applicants of the cases already at the Court, as well as to other potential future victims subject to the involved Member State.

In the first and the second scenario, the Court will generally investigate a new case after the State has instituted the requested solution. This will be a case coming after the pilot, from an applicant who already had the chance of ‘testing’ the new remedy or the solution in the home State. It serves as a control mechanism for the Court and is thus intended to see if the remedy set up after the pilot judgment is an effective one. If the new remedy prima facie meets the requirement of effectiveness, the Court is able to strike all similar cases out of its list and can thus conclude that the pilot case in its entirety is closed. All other affected persons must turn to the new domestic remedy instead of applying to the Court. The Court has already closed four pilot proceedings through such follow-up cases: in Broniowski v. Poland ¹⁷ , in Hutten-Czapska v. Poland ¹⁸ , in Suljagic v. Bosnia and Herzegovina ¹⁹ and in Kuric and others v. Slovenia ²⁰ .

2.2. The pilot judgment procedure from the court’s viewpoint: Placing the court at the heart of the council of europe system

Apart from a tool to ameliorate the Court’s procedural efficiency, the creation of the pilot judgment procedure has also been justified from a more principled point of view. The Court has on several occasions put the procedure against the background of its own role and the division of competences within the Council of Europe. It has predominantly done so on three bases: first through the principle of subsidiarity, second its role under Article 19 of the Convention and last, the division of competences within the Council of Europe laid down in Article 46 of the Convention.

2.2.1. The principle of subsidiarity

First, the Court has referred to the principle of subsidiarity underpinning the Convention in order to show that the pilot judgment procedure fits within its institutional role. The principle of subsidiarity means that the primary responsibility for ensuring respect for the Convention’s rights is placed with the States. Only if they fail to do so, does it fall to the European Court of Human Rights to interfere. ²¹ Placing this primary responsibility on the States naturally results in a diminished amount of work for the Court. The principle of subsidiarity can thus be linked to considerations of efficiency.

The principle of subsidiarity is especially important in the context of the pilot judgment procedure. Pilots are said to embody the idea that States are the primary protectors of human rights due to the fact that they:

diagnose the underlying issue;

identify the general measures needed to tackle the issue at home; and,

ideally result in the repatriation of pending cases back to the domestic legal system.

The Court regards itself as assisting the States in performing their duty of executing its judgments and thereby ensuring respect for the Convention’s rights of every person within their jurisdiction. ²²

2.2.2. The Court’s role under Article 19 of the Convention

Article 19 of the Convention outlines the Court’s primary role: to ensure the observance of the engagements undertaken by the State Parties. In the context of pilot judgments, the Court has explained that it will assist States in figuring out what their obligations entail under the Convention. Finding the same violation over and over again is however not its role under the Convention. According to the Court, in such a situation there is no live Convention issue anymore. As the legal issues are clear, the Court considers that it has fulfilled its task. The Court in 2007 even hinted that “it cannot be ruled out that in the future the Court may wish to redefine its role in this respect and decline to examine such cases”. ²³

The Court has also stressed that its role is not to provide individual financial relief to each and every applicant turning to Strasbourg as a result of a systemic issue. This was explained by clarifying that the Court’s role is fixed in the abovementioned Article 19 of the Convention. The right to just satisfaction for victims of human rights violations, safeguarded in Article 41 of the Convention, is regarded as subsidiary. ²⁴ The Court thus considers that its task in pilot judgments is predominantly of an interpretative and guiding character focussed on the State Party involved. Granting financial relief to the victims of these violations does not count as the number one priority.

2.2.3. The division of powers within the Council of Europe: Article 46 of the Convention

The Court has looked at itself through the lens of Article 46. This provision concerns itself with the execution of the Court’s judgments and specifies that the principle actors in the execution process are the Respondent States and the Committee of Ministers. The former enjoys in principle a wide discretion to select the measures to take in order to execute judgments rendered by the Court. ²⁵ However, States will have to communicate with the Committee of Ministers as well, as the Committee of Ministers is tasked with assessing whether the chosen measures will effectively achieve the result required by the Court. ²⁶ The Committee of Ministers is inherently a political body. It creates a forum for constructive dialogue and political review of the execution process. The supervision of the execution of the Court’s judgments proceeds in a cooperative manner, contrary to the inquisitorial nature of the procedure before the Court. ²⁷

In 2004, the Committee of Ministers issued a Resolution on judgments revealing an underlying systemic problem. It invited the Court to identify and diagnose the underlying structural problems in its judgments with a view to helping the States remedy them. ²⁸ This was essentially qualified by the Court as a plea for help from the Committee of Ministers. ²⁹ Immediately after, the Court reacted to the Committee of Ministers’ invitation when it came out with its judgment in the first pilot judgment Broniowski v. Poland on 22 June 2004. ³⁰ Fairly early on, the procedure was critiqued by commenters who claimed that it is not helping the Committee in its work. ³¹ The cooperative political nature of the execution process was said to be duly complicated by the ‘judicialisation’ of it imposed by the Court through these general measures. ³²

Critique was also voiced, claiming that the Court was impeding on the competences of the Committee of Ministers by the government in the case of Yuriy Nikolayevich Ivanov v. Ukraine on this point. It claimed that the use of the procedure would mean that the Court was performing a supervisory task, which belongs to the competences of the Committee of Ministers, as the Committee had already rendered a Resolution containing the measures required from Ukraine. ³³ The Court replied by clarifying that it is indeed the competence of the Committee of Ministers to supervise the implementation of measures aimed at satisfying the States’ obligations under Article 46 of the Convention. The Court on the other hand is tasked to ensure the observance of the engagements undertaken by the States based on Article 19 of the Convention, as explained above. It emphasised that this task is not necessarily best achieved by repeating the same finding in large series of cases. Seeing the recurrent problems in this respect, it is within the competence of the Court to apply the procedure in order to “induce the Respondent State to resolve large numbers of individual cases arising from the same structural problem at domestic level”. ³⁴ Further on in the case, the Court explained that multiple and complex measures are required from the State and as a result, the Committee of Ministers might be better placed to develop the specific general measures required. However, the Committee had already done so and the Ukraine government still had not started to remedy the underlying issue. As a result, the Court concluded that Ukraine had demonstrated “an almost complete reluctance” to solve the issue. ³⁵ It thus seems that the Court explained in this specific context that it does have the competence to interfere, as the State is reluctant to abide by the general measures designed by the Committee of Ministers beforehand. The Committee of Ministers and the Court demonstrated here to work in close tandem, showing that they will follow up on the issue until it is solved. This idea of close cooperation between the Court and the Committee as a strategy for reluctant States is further reflected in the infringement procedure, which has been put in place in Protocol no. 14. This creates the possibility for the Committee of Ministers to bring a reluctant State before the Court with the specific intention of the Court examining whether that State has failed to fulfil its obligation under Article 46 to execute a previous judgment.

With respect to the pilot judgment procedure in the context of Article 46, the Court thus seems to regard its role as giving guidance to both the State and the Committee of Ministers as to how the underlying systemic issue is to be solved. If needed, it will try and employ the procedure as an extra persuasion technique for the State to go about and tackle its domestic problem. If that still does not urge the State to execute the judgment, the Committee of Ministers can again turn to the Court in order to procure a finding of a violation of Article 46, the ultimate naming and shaming technique available to the Council of Europe.

2.3. The pilot judgment procedure from the applicants’ viewpoint: The right to individual petition

Critique has however been voiced from the perspective of the applicants’ right to individual petition against the pilot judgment procedure. ³⁶ Fairly early on, the fear that the pilot judgment procedure could be detrimental to the applicants involved was even voiced by the Committee of Ministers:

In certain circumstances, it may be preferable to leave the cases to the examination of the Court, particularly to avoid compelling the applicant to bear the further burden of having to, once again, exhaust domestic remedies, which, moreover, would not be in place until the adoption of legislative changes. ³⁷

This argument that the adjourning of cases will hinder the right to individual petition is also wide-spread in the literature. ³⁸ These perspectives all express a fear in this context; an assumption that the pilot procedure will negatively affect the right to individual application of the applicants involved in these cases. The problem here is that this possibility for adjournment that has been labelled as the central element of the pilot judgment procedure aimed at lightening the Court’s overburdened docket. ³⁹ As explained above, it is also the result of the Court’s subsidiarity reasoning and fits with the Court’s determination of its role under both Articles 19 and 46.

The right to individual petition is safeguarded under Article 34 of the Convention. The provision only mentions that the Court may receive applications from individuals. It however also denominates this possibility to bring claims to the Court explicitly as a right and determines that its effective exercise may not be hindered by States. The Article thus creates a right to direct access to the Court, which could be argued to be the international equivalent of the right to access to justice. This point has indeed been argued by Lambert Abdelgawad who has stated that:

[w]hat the Court has affirmed in respect of the judgments of domestic courts and tribunals also applies to judgments of the Court itself, since the Convention for the Protection of Human Rights and Fundamental Freedoms […] is subsidiary to domestic legal systems. ⁴⁰

Access to justice was not explicitly recognised as a right in itself by the ECHR, nor in any other major international human rights instrument. ⁴¹ It was first codified as a right in the 2006 UN Convention on the Rights of Persons with Disabilities. The Convention obliges States to ensure to persons with disabilities access to justice, on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants. ⁴² From this, it is clear that the right to access to justice is a practical one, which is aimed at ensuring the practical possibility for persons to actively participate during a procedure. As argued by Francioni, access to justice is an umbrella term encompassing both the right for a person to enter a court of law, and the right to have his or her case heard and adjudicated in accordance with substantive standards of fairness and justice. ⁴³ Gerards and Glas have summarised this wide approach by dividing the concept of access to justice in its procedural branch and a substantive prong. The narrow procedural approach terms the notion of access to justice as merely providing an opportunity to use a procedure before a court or other judicial body. Substantive access to justice also focusses on just outcomes and questions whether procedures help realise material justice. This cannot be done without looking at due process standards and procedural justice. ⁴⁴

Taking all of these elements into account, it could be argued that the pilot judgment procedure as such is problematic from the viewpoint of individual access to justice for several reasons. First, Rule 61 elaborates on the information that is provided to the applicants involved in a pilot judgment procedure. With respect to the applicants directly involved in the pilot case, it is indicated that the Court will seek their views as to the existence of a systemic issue and the suitability of the application of the procedure. ⁴⁵ This rule does not indicate whether these applicants are expressly being informed about the pilot judgment procedure, how it works or what they can expect from it. Rule 61 further explains that the applicants of the adjourned cases will be informed in a suitable manner of the decision to adjourn. To this end, they will be notified of all relevant developments affecting their case. ⁴⁶ The rules however do not indicate what kind of information is provided to these applicants, which manner is used to distribute the information, and when they are provided with this information. There is also no indication that these applicants are given the opportunity to submit their views concerning the application of the procedure to the Court. The applicants in the adjourned cases thus loose the control over their case and are not able to share their arguments with the Court.

Second, when looking at the pilot judgment procedure from a procedural justice point of view, several questions can be raised as well. ⁴⁷ As explained above, the pilot judgment procedure was born out of practice and was only later codified. The result of this is that the procedure is used flexibly. Its modalities change depending on the situation at hand. ⁴⁸ Although this is in part its strength, ⁴⁹ it also results in an uncertain situation for the applicants since there is no transparency as to when the procedure will be applied, which parameters are used for the selection of the specific pilot case and what kind of information is gathered in order to come to this conclusion. This characteristic is problematic in the light of the requirements of consistency – meaning that procedures must be applied consistently across people and time –, bias suppression – the requirement that the decision-maker is neutral -, and accuracy – asking that the decision is taken based on correct and accurate information. Furthermore, there is no possibility for the applicants in the adjourned cases to argue against the application of the procedure or the selection of the pilot case. This goes against the procedural justice principle of correctability which relates to the availability of possibilities to correct inaccurate outcomes. Representation poses another challenge. The fact that the situation of the applicants of the similar pending cases depends on the outcome of a case to which they are not a party, raises questions. The applicants in the similar pending cases do not get the opportunity to argue that their case is different than the pilot case, and that their case must thus be decided upon separately. ⁵⁰ There is further no part of the procedure which formally avails itself of the question whether the chosen pilot case is representative of the issue at hand. ⁵¹

Third and last, as Gerards and Glas argue: “no matter the method of disposal, no individual access is given to the Court.” ⁵² Indeed, in the situation of pending applications which are put in the waiting line until the State has put up a domestic remedy, these cases are sent back to vindicate their rights in the domestic system again. Such a manner of working cannot be seen as allowing the victims of large scale human rights violations to address the Court and make their case. In the instance that States are allowed – or even encouraged ⁵³ – to solve the pending cases via Friendly Settlement, it must be stressed that this procedure is not as friendly as the name might suggest. It is again a fast-track procedure where the Court plays a much more active role. It is the Registry which makes a proposal for Friendly Settlement, upon which the parties agree or not. There are thus no negotiations between States and applicants where they come to a compromise on how to solve the situations. ⁵⁴ Moreover, if the applicant does not agree but the State does, the Court can still go along and decide on a Unilateral Declaration in this respect, which is an agreement between the Court and the State alone. ⁵⁵ It is only in the Court’s worst case scenario, when similar pending cases go to the WECL-procedure that the applicant will again have the chance to be heard by the Court. As this goes against the whole purpose behind the pilot judgment procedure, this does not seem to be the most ideal solution for the Court.

2.4. Efficiency versus accessibility: Are these mutually exclusive interests?

It thus seems that the pilot judgment procedure creates tension between the Court’s interest of procedural efficiency ⁵⁶ and the applicants’ right to individual justice. The Court however has argued that these interests do not necessarily need to contradict. In applying the procedure, it has justified its procedural choice partly on the basis of the urgent need to offer redress to all persons involved. ⁵⁷ The Court has further not always adjourned similar pending cases. ⁵⁸ In some cases it decided to refrain from adjourning explicitly based on the interests of the similarly situated applicants involved. This has predominantly happened in pilot cases involving sub-standard conditions of detention contrary to Article 3 ECHR, with a few exceptions. ⁵⁹

Taking a macro-view over the procedure, it could further be argued that applicants who are placed in the same position as the lead applicant in the pilot case might get a solution quicker than if their case would be handled individually. This would be the case both where the Court fixes a time limit for the State to implement the needed general measures so that the applicants have a solution at their disposal in a specific time-frame, as well as when the Court encourages Friendly Settlements. In both these instances, the applicants arguably have a solution to their problem in due time, while they are able to present their individual case, be it in Strasbourg or in the domestic system. For instance, the Court indicated in the Kuric pilot judgment of 2012 that the Slovenian State was to set up a domestic compensation scheme within one year. ⁶⁰ In 2016, the Court closed the issue finding that the underlying problem was solved. ⁶¹ Seeing that the Court generally aims to come to a judgment within three years of the lodging of an individual application, ⁶² it could be argued that four years for the solving of a systemic issue with respect to a large group of affected persons is quite quick. Furthermore, no one is served when the Court itself is completely overburdened due to unaddressed systemic issues in a given State leading to a growing influx of quasi-identical cases. Once the issues are solved, this is in the interest of all parties involved, including the applicants.

It must be stressed however that these hypotheses assume the State’s willingness to cooperate. The underlying issue however can only be solved when in reality the State is willing and able to execute the requested general measures. In a situation where the State is not willing to do so, the Court consequently remains to receive similar applications in which case it would have to question what it would do with these incoming petitions flooding its docket. The question thus remained what the outcome would be when the Court is indeed obliged to choose between either its own efficient functioning or the right to individual access to justice of the applicants involved. The Burmych judgment shows that in such a situation, the Court will try to safeguard the system’s efficient functioning.

3. Burmych and others v. Ukraine: The Court’s choice for its efficient and principled role

This section will now apply the two viewpoints as developed above to the ECtHR’s Burmych judgment. To this end, the history of the issue at hand will first be discussed: Ukraine’s long-standing problem of non-execution of domestic judgments and the Court’s first attempt at addressing this in the Ivanov pilot judgment. Subsequently, the Burmych case will be analysed, leading to an examination of its consequences for the victims involved.

3.1. The Ivanov pilot judgment

Since over a decade, Ukraine has triggered the income of a relatively high number of cases to the Court. During this time-span it has continuously been included in the high-case count countries in the Court’s statistics. Since 2014 until October 2017, it has even been the State accounting for the highest percentage of pending applications. ⁶³ The explanation behind these statistics is that Ukraine has a systemic problem of non-execution of national judgments which create a right to compensation from a government or government-controlled agency.

This issue was first discussed in the case of Kaysin and others v. Ukraine in 2001, not coincidentally the first judgment against Ukraine. ⁶⁴ The case concerned the applicants’ right to an invalidity pension which was not paid by their employer, a partly State-owned mining company. The parties reached a Friendly Settlement and the involved applicants received just satisfaction. The underlying issue however was not solved.

Consequently, the Court kept receiving applications following from the same underlying structural problem. Seeing this influx of similar cases, the Court decided to apply the pilot judgment procedure in order to induce Ukraine to tackle the issue. The chosen case was the one of Yuriy Nikolayevich Ivanov ⁶⁵ , a retired soldier who had not been paid the lump-sum pension to which he was entitled. In the case, the Court explained that more than half of its judgments against Ukraine between 2004 and 2009 had concerned non-enforcement of final decisions, and that at that moment 1400 similar applications were pending. ⁶⁶ The underlying structural issue was still posing problems and there was no domestic remedy available. These applicants thus all had turned to Strasbourg. The Court emphasised that this would require complex general measures which should be developed under the auspices of the Committee of Ministers. ⁶⁷ Similar pending cases were adjourned for a term of a year, giving the Ukrainian government the time to work out a plan with the Committee and to set up a domestic remedy. ⁶⁸ The goal was then to send these similar cases back to the domestic system so that they could complain using this new domestic remedy. As explained above, the Court also reprimanded Ukraine and stated that it had shown an almost complete reluctance to resolve the issue. ⁶⁹ It further warned that it would be forced to re-open examination of these pending cases if Ukraine failed to take the necessary measures. ⁷⁰

As clearly feared by the Court, the Ukrainian government failed to execute the Ivanov judgment. After a first extension of the time period, it was clear that the Government still had not reacted adequately. The second request for extension was thus refused and the Court resumed the examination of pending cases, hoping that this would again put pressure on the State to take action. ⁷¹ This strategy again failed. The Court started to receive complaints from applicants whose cases had already been processed and had thus been granted compensation. They informed the Court that Ukraine had again not honoured its obligation, meaning thus that the problem still had not been solved domestically. ⁷² Moreover, it had in the meantime grown into a major obstacle for the Court’s future functioning: since 2004 the Court had received 29 000 similar applications, of which 12 143 were still pending on 12 October 2017. ⁷³

3.2. Failing of a pilot judgment: The Court’s approach in Burmych and others v. Ukraine

This clear failure of its approach in the Ivanov pilot judgment and the resulting overwhelming number of similarly situated victims turning to Strasbourg triggered the Court to address the situation in the Burmych case. The Court recognised that it would have to employ a new approach, in line with the principle of subsidiarity underpinning the Convention. ⁷⁴ The Court specifically asked itself whether it should act as a mechanism for awarding compensation to each and every applicant of repetitive applications which follow pilots. It reiterated the abovementioned dual purpose of the procedure and stated that its role here is to identify the systemic problem and to indicate the required general measures, contrary to the Committee of Ministers which is tasked with supervising the observance of these general measures by the State. As the obligation to grant relief to victims in follow-up cases is encompassed in these general measures, the Court argued that this needs to be addressed in the framework of the execution proceedings. ⁷⁵ The failure to execute the Ivanov pilot judgment case should not be its responsibility anymore. As execution is the central point here and the problems are essentially of a financial and political nature, the Court decided that the non-execution of the Ivanov pilot case is now the responsibility of the Committee of Ministers. ⁷⁶ All similar pending applications were struck out from the Court’s list and absorbed in the execution process of the Ivanov case at the Committee of Ministers. The Court however reserved the right to re-open the cases if the circumstances justify it. To this end, the Court envisaged to reassess the situation within two years of the delivery of the Burmych judgment in order to consider whether circumstances exist such as to justify a re-opening of cases. ⁷⁷

The Grand Chamber judgment was rendered by ten votes to seven. Arguably, there must have been a weighty discussion preceding the judgment. The seven minority judges, including the Ukrainian judge, ⁷⁸ attached a rather strong-worded dissent. In the dissent the judges stress that this decision was taken out of efficiency considerations. According to them, it has nothing to do with human rights. They focus very much on the viewpoint of the victims by claiming that the Convention requires that each application is given an individual judicial assessment and that no victim is to be regarded by the Court as a ‘burden’. ⁷⁹ Further, they argue that the Court simply accepts that there is no solution and in order to release itself from the burden, it passes the buck to the Committee of Ministers. Interestingly, the dissenters state that the Committee of Ministers was not consulted concerning this new division of powers. ⁸⁰ Lastly, the dissenters warn that the present solution has the perverse result of encouraging Member States not to introduce general measures where a structural problem has been found to exist. For the following two years, nothing will happen with these cases. It is not realistic that the solution to a problem which has persisted for over sixteen years, will be found at the Committee of Ministers within these two years. The Court is thus postponing having to deal with the issue again and in the meantime, the applicants will not be heard nor will they receive a binding judicial decision. The pressure on the State is off and consequently they argue that the judgment is in fact rewarding non-compliance. ⁸¹

3.3. Consequence of the Burmych judgment for the victims

The consequence of the Burmych judgment is in essence that the case of Mr. Burmych and the other 12 143 applicants are bundled and immediately put in the bulk of cases handled at the Committee of Ministers under the Ivanov execution process. The positive effect from the viewpoint of these applicants might be that they do not have to argue their case before the Court. The fact that their rights have been violated is taken as a given and they are put at the same level as others whose cases have already been entertained by the Court and have resulted in the finding of a violation.

However, just as the dissenters stress, the Committee of Ministers is a political body. It is not there for the applicants. The large-scale strike-out decision taken by the Court in the Burmych case thus means that the determination of the human rights claim will not take place at a legal body, but will be dealt with in the context of a political process. This in and of itself raises a few questions from the standpoint of the victims. First, instead of a binding judicial decision, this political process merely leads to a non-enforceable decision of a political body where the involved State is part of the decision-making process. ⁸²

Second, applicants do not have the possibility to present their case individually. They do however have the chance to submit their views with respect to the execution of their case concerning the payment of just satisfaction or the taking of individual measures by the State. Seeing however that the Court will not find a violation in these cases, it can also not award just satisfaction under Article 41. These applicants will thus not be able to claim financial compensation. ⁸³ Arguments concerning general measures will need to come from States, non-governmental organisations and national human rights institutions. ⁸⁴ The applicants certainly cannot submit their arguments concerning the legal aspects of their case, nor can they complain if they feel their case is not represented by the chosen pilot case. As explained above, this poses problems in terms of procedural justice. Third, if the dissenters are correct and there is no solution found at the Committee within the next two years, these applicants will be kept in the same exact position for the time being without not even the prospect of having an international court declaring openly that their rights have been wronged.

4. Conclusion: Is the Court giving up on individual justice?

The Court had already chosen to restrict the applicants’ rights with the procedural design of the pilot judgment procedure. Indeed, it had already shown that when it is confronted with a systemic problem in a State, it chooses to put the focus on the issue rather than on the victims affected by the violation. As explained above, a pilot judgment could lead ⁸⁵ to the underlying issue being resolved, leading to a positive outcome for the applicants as well. Furthermore, an overburdened Court whose functioning is paralysed by a continuous influx of similar cases does not serve its purpose and would be detrimental to all actors involved. These considerations could justify the limitations on the applicants’ rights in the context of a pilot judgment procedure.

With this Burmych judgment however, the Court seems to explain that there is nothing to gain from it pronouncing a State’s reluctance to execute a judgment as long as the State remains indeed reluctant to execute. The Court is of the opinion that a legal strategy is pointless here and will instead favour a political approach, removing itself as well as the applicants from the equation. However, as the dissenters also argue, the cases of the 12 143 remaining applicants are not examined by the only legal, and thus objective, institution where they can still turn to. They will not be able to make their case or argue their points before the Court, nor is there any provision that they can do so before the Committee.

It could be argued that the Court is indeed giving up on individual justice in favour of both procedural efficiency, as well as its principled stance concerning its role within the Council of Europe. When a State is insistently refusing to respect its citizens’ human rights, the Court will also turn these victims away. In this instance, the Court does give up on individual justice and lets the bigger picture usurp the rights of the individuals involved.