II. Pilot judgments

A puzzling omission from Professor Ulstein’s account (omitted perhaps because it is so obvious) is the emergence of pilot judgments, which may be seen as the epitome of the evolution of the Court from the ‘individual’ to a ‘constitutional’ justice paradigm.^{Footnote 3} As Steven Greer and Luzius Wildhaber characterise it in a 2012 article, it is ‘the boldest attempt to tackle the problem of defective national legislation or practice’.^{Footnote 4} The procedure, invented by the Court, of identifying systemic defects in a state’s legal system transcends the traditional understanding of the Court as constituting the final, extraordinary, super-appellate instance, when all the domestic remedies against a national decision have failed to give satisfaction to the claimants.

The process ostensibly goes against the fundamental consensus in the background of setting up the Convention system in 1950, that all the member states of the CoE have laws fundamentally consistent with the Convention (divergences being attributable to legitimate diversity, eventually to be permitted under the margin of appreciation), and the role of the Council’s adjudicatory body was only to undo aberrational decisions when all domestic remedies had been exhausted, rather than to reform the law itself.^{Footnote 5} This post-1950 consensus was always to some extent a fiction, and occasionally (but as an exception to a general rule) the Court undertook to deem laws, not just decisions, contrary to the Convention.^{Footnote 6} But with the enlargement of the Council into the Central and Eastern part of the Continent, this fiction could no longer be maintained, and it became necessary for the Court to issue rulings triggered by the systemic defects of the law rather than individual aberrational decisions of appellate courts.^{Footnote 7} Hence the idea of pilot judgments, which is the most evident symptom of the constitutionalisation of the Court. It is indeed no coincidence that a large majority of all fully fledged ‘pilot judgments’ so far have originated from Central and Eastern Europe.

Formally speaking, it was the political branch of the CoE that was the catalyst for change. In 2004, the Committee of Ministers (CoM) adopted a resolution and a recommendation which provided the political grounding for pilot judgments, while carefully avoiding constitutional terms. The Resolution invited the Court ‘to identify in its judgments … what it consider[ed] to be an underlying systemic problem and the source of that problem, in particular when it [was] likely to give rise to numerous applications’.^{Footnote 8} The Court happily adapted to this role, as evidenced by its own case law, but at the same time some judges (who I will refer to in a moment) expressed their misgivings about openly adopting constitutional language.

To be sure, in the operative parts of its ‘pilot judgments’ the Court never uses explicitly ‘constitutional’ language, which is its way of avoiding admitting what is obvious to any observer.^{Footnote 9} The central reason provided by the Court to support its use of a pilot-judgment approach is that of docket control. This was the rationale given in the Court’s first pilot judgment, Broniowski, when it seized upon the opportunity provided by the Committee of Ministers to discern ‘systemic’ problems: ‘[T]he measures adopted [by the respondent State] must be such as to remedy the systemic defect underlying the Court’s finding of a violation so as not to overburden the Convention system with large numbers of applications deriving from the same cause.’^{Footnote 10} So, in the authoritative statement of the Court itself, it is the spectre of a ‘lengthy series of comparable cases’ which triggers the new procedure.

But this non-constitutional rhetoric is not convincing.^{Footnote 11} Indeed, the issue of legitimacy of the ECtHR in challenging national legislation was seized upon by some of the judges of the Court. Judge Zagrebelsky in his (partly) dissenting opinion to the 2006 Grand Chamber judgment in Hutten-Czapska v Poland, the second pilot judgment in the Court’s history, argued that when the Court indicates the need for a State to amend its legislation in order to solve a general problem affecting individuals other than the applicant, it is usurping the role of the Committee of Ministers and exceeding its authority as set by the Convention.^{Footnote 12} To make the point even sharper, he added that the judgment ‘entrust[ed] the Court with duties outside its own sphere of competence’.^{Footnote 13}

The ‘c’ word has not appeared in the dissent by Judge Zagrebelsky – but it did in an emphatic separate opinion by Judge Zupančič in the same case. Specifically rebutting the idea of the ECtHR’s constitutionalism, Judge Zupančič writes: ‘The Court clearly does not have, with the usual paraphernalia of constitutional law, an interest in meddling in what national legislation should or should not do. … We are not and cannot be constitutional court for the 46 countries concerned.’^{Footnote 14} While Judge Zupančič defended the very concept of pilot judgments he nevertheless characterised them in strictly pragmatic rather than constitutional terms: as a measure of docket control, and akin to a class-action approach.

But this sounds like protesting too much. Judge Zupančič claims that the Court would be behaving in a constitutional (thus, improper) way if the judgment were formulated in abstracto and if the Court were saying ‘that a particular piece of national legislation that had been the cause of the case before us was incompatible with the Convention, or in other words “un-conventional”’.^{Footnote 15} But this is precisely what the Court was saying in Broniowski, Hutten-Czapska and subsequent pilot judgments. By reproducing in its judgment in Hutten-Czapska, with approval, the long passages of the Polish Constitutional Tribunal’s judgments of unconstitutionality of the Rent Act, the European Court was effectively endorsing the Tribunal’s judgments of unconstitutionality and ‘un-conventionality’.

Judicial misgivings about the Court’s adopting a constitutional role (not necessarily in so many words) have been reiterated, as the practice of issuing pilot judgments has continued. In his dissent of a ‘semi-pilot case’^{Footnote 16} Lukenda v Slovenia, Judge Zagrebelsky noted bluntly, ‘the Court is requesting the Government to change the national system in law and in practice. Nothing more, nothing less.’^{Footnote 17} It is difficult to find a better description of the constitutional role – although (or rather, especially because) it came from a strong opponent of such practice.

III. Implementation of the ECtHR’s judgments

An important aspect of the constitutionalisation of the ECtHR and its increasing autonomy vis-à-vis member states of the CoE is the evolution of its role concerning the execution of its own judgments. The mechanism for execution of the judgments is set out in Article 46 of the Convention which provides that judgments are binding on the respondent states (paragraph 1), and that their execution is subject to the supervision of the CoM – hence, an intergovernmental body of the CoE. Originally, the Convention did not envisage any role for the Court in the execution phase, but Protocol 14 (which entered into force in 2010) modified the process by allowing the CoM to seek interpretative assistance from the Court to clarify obligations arising from a judgment and also to institute proceedings before the Court to determine whether the respondent State had complied with a judgment. Hence, a traditional division of tasks between the Court and the CoM, whereby the exclusive responsibility for monitoring execution rested with the intergovernmental body, has been undermined, and the Court has acquired significant powers in the process of execution of its judgments. This is particularly pronounced with regard to ‘pilot judgments’, already mentioned above, where the Court has assumed a responsibility hitherto exercised by the CoM and started pronouncing specifically on the remedial measures to be undertaken by the respondent State.

This practice became consolidated and formalised in the Rules of the Court: the new Rule No. 61, adopted by the Court in February 2011, provides that the Court is to identify the type of remedial measure which the State is required to take at the domestic level, including that the Court may indicate a specific time frame for the adoption of remedial measures. As has been observed, ‘the Court might be said to be straying further into the territory of the Committee of Ministers, since it not only indicates the type of remedial measure required but also engages in a form of supervision of the process’.^{Footnote 18} This increasingly active role of the Court in the execution process is one of the indicia of its growing autonomous authority and emancipation from the states as guardians of implementation and execution of judgments, traditionally viewed as only declaratory in character, with the execution stage left to the political will of the member states of the CoE.

It should be explained why the growing control by the Court over the implementation of its judgment may be properly seen, as I claim, as an indicator of its ‘constitutionalisation’. After all, domestic constitutional courts usually have only very meagre powers – if any at all – over the implementation of their judgments. But the ECtHR is not a domestic court, and its pattern of rapports vis-à-vis the political branch of the CoE is different from the relations between national constitutional courts and the executive branches in their states. The ECtHR, in order to make good the claim for the constitutional character of its judgments, must be able to reach out directly to the states, with as little intermediation by the CoM as possible. On the spectrum of the forms of control of implementation of the ECtHR judgments, the more the Court can control the implementation, the more it corresponds to being embedded^{Footnote 19} in the national legal system – thus playing an autonomous role at this stage (namely, at the stage of implementation). Such embeddedness is a mark of its constitutional character – it becomes part and parcel of the national legal system, just like a domestic constitutional court is.

IV. Democratic legitimacy of the Court

In his article, Professor Ulfstein engages with the question of the democratic legitimacy of the Court by appealing to the delegation of powers by democratically accountable national bodies to the Court to make binding judgments. This ‘democratic support’ by national bodies is seen to be the cornerstone of the democratic legitimacy of the Court. I am not quite sure that the matter can be resolved so neatly. For one thing, while the Treaty pedigree of the Convention may enhance the democratic character of the ECtHR qua the Convention’s authoritative interpreter (because of democratic process leading to the Treaty’s adoption and ratification in CoE member states), on the other hand, a requirement of consensus for Treaty change renders the entrenchment of the Convention even stronger than that of national constitutions.^{Footnote 20} After all, it is one thing to say that the rules of a particular supranational body had been, at its birth, agreed upon by the member states the executives of which had had full democratic legitimacy (as was the case within the CoE) and another thing altogether to say that this original democratic pedigree puts repeatedly and forever a stamp of democracy upon whatever the Court does, along the trajectory of its further evolution. In other words, there seems to be a non sequitur from the democratic pedigree of a supranational court to an ongoing democratic functioning of the court.

In the case of the ECtHR the non sequitur is amplified by the growing ‘autonomisation’ of the Court. In the scholarship on international organisations, the concept of ‘autonomisation’ has been coined to describe the growing independence of inter- or supranational bodies from states’ consent as their main legitimating factor.^{Footnote 21} When autonomisation occurs, it is no longer realistic to assert, as the traditional idiom goes, that states are ‘masters of the treaties’, and that an institution’s will expresses the sum, or a consensus, or a common denominator, of the member states’ wills.

This has been, emphatically, the case in respect of the ECtHR. While the member states have endowed the Court, by mutual consent, with the legal grounds for its rulings (the Convention, including its successive Protocols), the Court has imposed, through an interpretation of the Convention, more specific obligations upon states which they had not necessarily anticipated and to which they would not have necessarily consented: they tied their own hands in ways going beyond their control. The Court has established and consolidated this authority by a number of argumentative moves, and in particular through an inventive use of the doctrine of effectiveness (effet utile) – an important device in the array of its argumentative strategies, which requires that the provisions of the Convention should be interpreted so as to make it safeguard rights that are ‘practical and effective’ rather than ‘theoretical and illusory’.^{Footnote 22} This justified an expansive interpretation of Convention rights, including the recognition of broad positive obligations on states, not necessarily immediately detectable in the abstract articulation of a right itself.^{Footnote 23} Another argumentative device serving the expansion of protection of rights has been the doctrine of ‘autonomous meaning’ of the terms used in the Convention: the Convention meaning is independent of the meaning of those (or equivalent) terms used in the domestic law of the member states. This means, in practice, that the Court will protect European citizens’ rights, despite what their member states have actually committed themselves to: the ‘concepts’ serve as shells for the ‘conceptions’ developed by the Court, regardless of and often contrary to the ‘conceptions’ recognised at a state level.^{Footnote 24} Between them (and with the addition of the doctrine of ‘evolutive’ rather than static interpretation, where the Convention is seen as ‘a living instrument which must be interpreted in the light of present-day conditions’),^{Footnote 25} these doctrines have served as the platform for expanding, or even ‘inventing’ new rights, well beyond what could have been anticipated by the contracting states. Tom Zwart lists inter alia the following ‘new rights’ found by the Court in the Convention: due process in administrative law, the right not to be exposed to pollutants, and the rights of aliens to reside with their spouses, to receive financial support, and not to be removed if they are at risk of being exposed to inhuman treatment.^{Footnote 26}

For all these reasons, it is difficult to claim that the legitimacy of the ECtHR in the national orders of member states of the CoE is primarily due to the consent given to it by democratically constituted national governments. But from the fact that the Court is not primarily democratically legitimated it does not follow that it is not legitimate at all; what does follow is that its sources of legitimacy lie elsewhere. I have claimed that the main source of legitimacy of supranational adjudicative bodies such as the Court is in the sort of reasons they give for their judgments, and more particularly, that they are exponents of ‘supranational public reason’.^{Footnote 27} This resonates with Allen Buchanan’s theory of international human rights based on epistemic requirements of a credible public justification. As Buchanan observes: ‘[t]he legitimacy of an international order grounded in the commitment to human rights depends in part upon whether there is a credible public justification for human-rights norms and decisions by international human rights institutions’.^{Footnote 28} These requirements amount to an overall general threshold quality for legal decisions. This is what Armin von Bogdandy and Ingo Venzke call ‘the legitimatory significance of justifying legal decisions in a way which lives up to the standards of the profession and that meets expectations of participants in legal discourse’.^{Footnote 29}

This short comment is not the place to articulate this argument at any length; all I need to say here is that these different types of legitimation, democratic and through the type of justification of decisions, are mutually complementary and coexist in different proportions at different levels. At a pan-European level, a quasi-constitutional court such as the ECtHR must make up for deficits in democratic legitimation by appealing to other sources of legitimacy available to it.