Monday, 6 October 2008

The Pilot has Landed

This week the Court concluded its first full cycle in a so-called pilot case procedure. It struck out 176 pending applications in the "Bug River" cases. These cases all concerned claims of applicants who disagreed with a Polish scheme set up to compensate people who had lost their belongings at the end of the Second World War, when the boundaries between the Soviet Union and Poland were changed, causing more than 80,000 Poles to be forced to leave their homes.

The pilot case procedure is a procedure used by the Court to deal with systemic human rights problems which surface in a large number of comparable applications. In such cases the Court selects a "pilot" case and decides in that specific instance, indicating not only what remedies are called for in the individual case, but also how the problem should be dealt with more generally by the country concerned. Pending the outcome of the state's reaction, all other comparable cases are put on a hold.

In the context of the "Bug River" cases, the pilot case was Broniowski. That case was declared admissible in 2002 and the Grand Chamber held in its judgment in 2004 that Poland had violated Article 1 of the Convention's First Protocol (protection of property) and had to amend the compensation scheme to make sure that proper compensation for claimants was put into place. Appropriate action was indeed taken and in 2005 the Court accepted the friendly settlement reached between Broniowski and the Polish state. It expressed its positive attitude towards the general measures that Poland was taking at the time. The real test came, however, when the Court turned to all the comparable pending cases: in 2007 struck out two cases, Wolkenberg and Others and Witkowska-Tobola, out of its list. It is in those decisions that the most elaborate assessment of the Polish compensation scheme can be found. After those two decisions, the door was wide open for striking out large numbers of cases. And now the last batch has been struck out. Of course, it is still up to the Council of Europe's Committee of Ministers to monitor the situation in Poland on this account. But for the time being, the pilot case procedure seems a relatively efficient way to deal with at last part of the Court's backlog of cases.

Is this the end of the story? The Court seems to be cautious; in its press release the following can be read:

Similar complaints continue, however, to be lodged every month and as a result the Court is called upon to give individual decisions in cases where the Convention issue has been resolved at domestic level. The Court does not therefore rule out in the future declining to examine such cases.
Certainly to be continued....

2 comments:

Mathias Vermeulen said...

Do you think the pilot case procedure could ever be used for the huge amount of Russian disappearances cases, which is a slightly more sensitive subject of course...

Antoine Buyse said...

That is indeed a (much) more sensitive subject. One problem for those cases is that the circumstances vary much more than in the Polish cases. Also, in the Polish cases it concerned a general compensation scheme, whereas in the Russian case it concerns both the disappearances themselves and (various) shortcomings in the investigations. Those are problems which are less easily solved than changing a compensation scheme. Nevertheless, it cannot be denied anymore that thedisappearances are a large-scale and maybe even systemic problem.