Uniting of several applications in one with priority is an important change in the international protection of human rights
One of the major and important changes in the international protection of human rights is aimed at improving the functioning of the European Court of Human Rights (ECHR or the Court) and reducing the number of applications received in the Registry of the Court. According to official data, the pending applications against Bulgaria for the past two years are beyond 5000. In this connection, the ECHR in its practice and its subsequent rules has adopted the procedure, known as pilot judgment, changing the existing understanding of the European Convention of Human Rights (the Convention) and significantly exceeding the specific case of the applicant, combining several applications in one with priority.
When do we have a pilot judgment
Pilot judgment occurs when there is a large number of applications, referred to the Court, relating to similar repeating infringements of the rights and freedoms, guaranteed by the Convention and the protocols thereto, and due to the same structural or systematic domestic problem in the state, against which such a decision is stated. At its discretion, the Court may choose one or more applications for priority review, as in this way the applicants will receive faster compensation, than if their cases are processed separately in the Court.
The implementation is the most important part of the pilot judgment, as in case of failure, the integrity of the national or the international legal system would be put into question. Namely, for that reason, in the procedure for implementation of the judgments of the Court, the pilot judgments have priority over those of the Committee of Ministers of the Council of Europe. In the pilot judgments unlike the ordinary judgments, the Court’s task is not only to decide whether there is a violation of the Convention and to determine the due compensation in the specific case, but also to identify the systematic problem, to determine a deadline for its removal and to give the respondent state clear indications, concerning the kind of measures that it should take.
Ability to postpone hearing of other related cases
An important feature of the pilot procedure is the possibility of adjourning or freezing the examination of all other related cases for a certain period of time. This is an additional mean of encouraging the respondent state to take the necessary steps for changing the legislation. In practice, the Court stops hearing the pending applications, raising the same legal issue, until stating the appropriate effective domestic mean of protection. For example, due to the first two pilot judgments in 2011 “Finger vs. Bulgaria” and “Dimitrov and Hamanov vs. Bulgaria”, concerning the structural problems in Bulgaria about slow justice in criminal and civil proceeding, some amendments to the Act on liability for damages incurred by the state and the municipalities (ALDISM) and to the Judiciary System Act (JSA) were introduced, as it was provided for the state to be responsible for the damages, caused to citizens and entities by violation of the right to hear and decide the case within a reasonable time in accordance with the Convention and therefore there was provided a possibility for filing an application for compensation for slow justice to the Inspectorate to the Supreme Judicial Council (SJC). The Inspectorate to the SJC has established a number of violations of the right to hear and decide the case within a reasonable time in violation of the Convention (failure to meet the provided by the procedural laws deadlines for stating the judicial acts; lack of knowledge by the magistrates of the Convention, as well as of the court practice of the ECHR; long duration of criminal proceedings of the pre-trial phase, etc.).
The changes will also apply to already filed applications
Moreover, the new legal mechanisms will be applicable for the already filed and registered applications, i.e. the Court will declare all pending applications before it inadmissible for failure to exhaust the newly created domestic means of protection. Considering that the application, filed before the Court, shall be considered average within 5 to 7 years, Bulgarian applicants will have to use the new mechanisms for compensation.
In witness whereof, the first two judgments that are not pilot and on which the Court has ruled in 2013, are “Valcheva and Abrashev vs. Bulgaria” and “Balakchiev and Others vs. Bulgaria”, in which the Court has declared the applications inadmissible and has accepted that the provisions of the JSA and the ALDISM about the possibilities for seeking an compensation can be considered “effective domestic legal means for protection against the excessive length of the proceedings before the civil, criminal and administrative court in Bulgaria”. In its practice, the Court has accepted that the existence of doubts about the effective functioning of the new means of protection does not exempt the applications from the obligation to use them before the national judicial authorities.
Impact on the countries for strict observance of the rights and freedoms
Another systematic structural problem in the Bulgarian justice effects also the completely new pilot judgment of this year “Neshkov and Others vs. Bulgaria”. The Court and the Committee for prevention of torture have repeatedly stressed the existence of severe overcrowding in Bulgarian prisons (prison cell with area: 1 m²) and the poor material and sanitary conditions, which is in breach of the provisions of the Convention, concerning the prohibition of inhuman and degrading treatment. In its judgment the Court also brings to mind that in these violations there is lack of effective mean of protection in the Bulgarian legal system. Interesting here is that the Court, contrary to its practice, has decided not to “freeze” the hearing of the pending similar applications.
In implementation of the pilot judgment procedure, the Court has given specific instructions and a deadline of 18 months of its entry into force for amendments to the Bulgarian legislation, having noted that a special body responsible for the places of imprisonment can be created, or a court to oversee the execution of the sentences. A common mean of protection against violations in inhuman and degrading treatment should be introduced or special provisions, under which the applications of prisoners should be heard. There can be provided an amount of money or reduction of the sentence, as form of compensation. The failure to comply with the instructions, given in the pilot judgment could lead to political sanctions by the Committee of Ministers of the Council of Europe and an avalanche of compensations, awarded to the applicants.
It is not an exaggeration to say that the pilot judgments have a relevant influence on the countries for greater compliance with the rights and freedoms, guaranteed by the Convention, and to take timely measures in a particular field. Nevertheless, the respondent state remains free, complying with the conclusions, set out in the pilot judgment of the Court to choose the means, by which to fulfill its obligations. The procedure cannot claim to be solution of all the difficulties, faced by the countries in their national legal systems, but it aims to provide a solution for the removal of some major problems and the establishment of legal protection for us, the Bulgarian applicants.
The article has been published in Bulgarian, in Capital Daily.