Human Rights Class Actions: Rethinking the Pilot-Judgment Procedure at the European Court of Human Rights

July 26, 2015

For decades, the European Court of Human Rights (ECtHR) has served as a bright beacon of hope for advancing human rights. Yet in recent years, a flood of applications has threatened to drown the institution entirely. In an effort to stay afloat amid the growing tide of cases, the Court instituted the so-called “pilot-judgment procedure.” Through this procedure, the Court attempts to address systemic violations on the domestic level that give rise to large numbers of repetitive applications by adjudicating an individual case. The procedure addresses the problems created by repetitive applications, which overburden the Court and cause delays in hearing individual applications that raise novel and grave human rights violations, thereby impeding the Court’s efforts to protect individual human rights. The pilot-judgment technique has been heralded as a bold and innovative response to these problems and has succeeded in stemming the tide of cases.

As currently conceived and applied, however, the pilot-judgment procedure is riddled with ambiguities and uncertainties, and it provides insufficient safeguards for the rights of absent applicants. Despite these problems, no one has yet articulated a proposal for ensuring the rights of absent applicants. This Article fills this gap in the literature by proposing that the ECtHR adapt the procedural safeguards enshrined in Rule 23 of the Federal Rules of Civil Procedure, which governs class actions in the United States. Like pilot judgments, class actions seek to achieve a balance between individual rights and judicial efficiency. The similarities between the procedures have been acknowledged on both sides of the Atlantic. For decades, U.S. federal judges have attempted to calibrate the tension between the need for judicial efficiency and the rights of individuals. These attempts can provide guidance and insight as to how ECtHR judges can balance the need to stem the flood of repetitive applications before the ECtHR with the need to safeguard the rights of absent individuals who will be impacted by the pilot-judgment procedure. Such balance is necessary if the ECtHR is to continue vindicating individual rights, staving off systemic human rights abuses, and serving as a model human rights court for other regional and supranational human rights regimes.

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