Deciding on the pilot judgment procedure

On 6 July 2010 a chamber judgment in the case of Yetis and Onthers v. Turkey has been issued by the Court’s second section finding a violation of Article 1 Protocol No 1. The Court observed that the violation it had found had originated in a systemic problem connected with the absence in Turkish law of a mechanism whereby the national courts could take account of the potential depreciation in the value of compensation awarded for expropriation, as a result of the combined effect of the length of proceedings and inflation. By finding this, the Court had the possibility to start the pilot judgment procedure.

With the Committee of Ministers Resolution Res(2004)3 the Court has been invited to as far as possible, 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, 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 of Ministers in supervising the execution of judgments. Accordingly the Court noted in its present judgment that more than 200 similar applications were currently pending before the Court, and the deficiencies in national law identified in the applicants’ case could give rise to a large number of subsequent cases. The Court further observed that in order to execute the present judgment, Turkey would undoubtedly have to adopt general measures to prevent further similar violations. Without prejudice to any other measures that Turkey might envisage, the Court held that the most appropriate form of redress would be to incorporate into the Turkish legal system a mechanism for taking account of potential depreciation in the value of compensation for expropriation as a result of the combined effect of the length of proceedings and inflation. This aim could be achieved, for example, by charging default interest to offset such depreciation or, failing that, by awarding appropriate redress for losses sustained by those concerned.

Taking into account the level in which the Court gets involved into the domestic affairs with the pilot judgments, an opinion has been earlier expressed that pilot judgments should be issued by the Grand Chamber (see the Partly dissenting opinion of Judge Zagrebelsky in Lukenda v. Slovenia).

Firstly, I think that the power balance within the Court should be sustained. The Chambers are, as envisaged by the Convention, the regular bodies to deliver judgments.  Their competence is not restricted (the Three judge committee can deal only with repetitive cases where there is well-establish Court’s case law, and the Grande Chamber deals with the cases that concern serious interpretation questions of the Convention).

Secondly, the issue at stake can be of no juridical significance and the only concern then would be the fact that the Chamber deals with a situation that is somewhat more politically sensible and impacts the State more directly or to a bigger extent. According to the Convention the Chambers are entrusted to deal with not only regular individual cases, but also inter-state complaints. Further, under the Rules of the Court the Chambers can indicate Interim measures to the States. This describes the position of the Chambers as capable of dealing with situations that are more sensible politically (inter-state complaints) and that in a more direct way involves into the affairs of the States (Interim measures).

Finally, the number of the actual or potential applications to start the pilot judgment procedure is not determined.  Thus I would keep the possibility for the Chambers to decide on the cases and develop the procedure – also where the numbers of actual or potential applicants is not significant – to minimize the case-load of the Court, which is the main reason for introducing the pilot judgment procedure.

By Maris Burbergs

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