Trial lecture - time and place
Adjudication committee
- Professor Mads Andenæs, University of Oslo
- Professor. dr Mattias Kumm, WZB Berlin Social Science Center (1. opponent)
- Professor dr. Eva Brems, Ghent University (2. opponent)
Professor Kjetil Mujezinović Larsen will act as substitute member for Professor Mads Andenæs during the defense.
Chair of defense
Supervisors
- Professor Geir Ulfstein
- Professor Andreas Føllesdal
Summary
The Pilot Judgment Procedure of the European Court of Human Rights (ECtHR) – illegal but legitimate?
This PhD thesis questions the legality of the pilot judgment procedure, a judicial innovation by means of which the ECtHR specifies legislative and other reforms to be undertaken to tackle systemic or structural problems underlying numerous violations and sets time limits for their implementation. It is controversial as it alters the distribution of responsibilities between the ECtHR and states under the constitutive treaty. It enhances the role of the ECtHR beyond what was originally agreed upon and undermines states’ freedom of implementation. Due to gradual consolidation of state support towards this initially contested approach, primarily due to its usefulness in reinforcing domestic remedial mechanisms, the case for the legal validity of this procedure became stronger. However, some forms of judicial engagement in matters of implementation, such as legislative injunctions, remain criticized.
The thesis further asserts that judicial practice of questionable legality can still be defended as legitimate, if certain jurisdictional, procedural and outcome related requirements are fulfilled in its application. While the ECtHR may avoid criticisms of states by operating within the frame of its original mandate, the inadequacy of the law (not enabling the Convention organs to react to the massive failure of states in reforming their laws and policies despite numerous findings of similar violations) and complexity of the formal amendment procedure call for adjustments through judicial practice. But is increasing prescriptiveness of judgments a proper solution in this situation? Is the fear that this procedure creates more problems than it solves justified? What kinds of adjustments would have legitimacy enhancing rather than legitimacy eroding effect?
In defining the appropriate scope of judicial engagement in matters of implementation that are normally within state domain, the author suggests that the decision-making on such matters should be shifted from the domestic to the European level, if and to an extent the state fails to solve the problems generating well-founded applications independently. This suggestion is made with the reservation regarding the compatibility of unnecessarily prescriptive judgments with the international judicial function and the ECtHR’s lack of capacity to find adequate solutions to complex problems in domestic legal systems. Some of these concerns may be mitigated by reducing the distance between the ECtHR and those affected by its judgments through adjustments in the procedure. In identifying the procedural requirements to be fulfilled, the contribution highlights the relevance of transparency and inclusiveness of the proceedings. A significant safeguard against negative consequences of judicial prescriptiveness is also the enhancement of dialogic nature of interaction between the Court and national jurisdictions.