The “pilot judgment procedure” in the Rules of Procedure of the European Court of Human Rights (ECtHR) is a special method shaped by the Court’s jurisprudence under the influence of the recommendations of the Committee of Ministers of the Council of Europe. The pilot judgment procedure, envisaged as a result of the need to reform the ECtHR’s jurisprudence, is designed to extend the judicial capacity of the ECtHR beyond individual justice, to transform the legal systems of the state parties, and to address the problems of concluding duplicate cases more easily and quickly in terms of procedural economy. In this way, systematic human rights violations arising from a structural problem or functional disorders in States Parties are finalized by selecting an exemplary application, and certain changes are requested in the policies and domestic laws of States Parties. Thus, the Court not only concludes many applications related to the same article with a single judgment and ensures that the state party fulfills its recommended obligations, but also reduces the workload and enables faster and more practical decisions. The pilot judgment procedure, which was developed through the case law of the ECtHR, was adopted by the Turkish Constitutional Court (CC) and imported into our domestic law. The “pilot judgment procedure” regulated in the Rules of Procedure has been described by the Court as a “unique decision” method created “to prevent a flood of clone cases”. In different pilot judgments delivered by the Constitutional Court so far, it has recommended revisions, policy and legislative changes to the legislature in order to solve structural problems. The pilot judgment procedure, which represents a new field of application for the Turkish constitutional judiciary, has brought along a number of debates, particularly on the separation of powers.
European Court of Human Rights Constitutional Court Pilot-Judgment Procedure Structural/Systematic Problem Separation of Powers.
A significant number of the applications pending before the European Court of Human Rights have emerged as so-called duplicate cases arising from operational problems at the national level. In order to bring these applications to a proper conclusion, to find a solution to the increasing workload and to increase the effectiveness of the European human rights system, the ECHR has developed procedures aimed at repairing the structural defects of the States Parties and compensating them for their domestic laws and practices in accordance with the standards of the European Convention on Human Rights. One of these procedures is the “pilot judgment procedure”, a specific method designed by the ECHR to extend its judicial scope beyond individual justice and to directly influence State Party legal systems.
The “pilot judgment procedure”, a procedure established by the Court when it finds that applications against a State Party alleging the same violation of rights arising from functional defects indicate structural or systemic problems, aims to eliminate the root cause of the problem giving rise to the applications instead of examining and resolving each application individually. This procedure, developed through case law, has been shaped by the recommendations of the Committee of Ministers. In accordance with the subsidiarity of the ECHR, the Committee of Ministers called on the Court to issue a “pilot judgment” to identify the structural or systemic problems and functional defects that underlie many applications and that are likely to lead to new applications, to propose an appropriate remedy to the States Parties and to monitor whether the necessary measures have been taken. Following the call of the Committee of Ministers, the ECHR added the “pilot judgment procedure” to the Rules of Court in 2011, following its first pilot judgment in 2004. Basing its extensive jurisprudence on normative foundations, the ECHR regulated the pilot judgment procedure in detail in the Rules of Procedure.
The pilot judgment procedure, shaped by ECHR case law, is included in the Rules of Procedure of the Constitutional Court, which prefers ECHR-like methods for the procedural and substantive examination of individual applications. Although its normative foundations date back to 2012, when the Rules of Procedure of the Court were adopted, it was necessary to wait until 2019 for the Constitutional Court to issue its first decision through the pilot judgment procedure. To date, five different pilot judgments have been delivered by the Court and in this context, it can be stated that the application of the pilot judgment procedure before the Constitutional Court is quite new.
It is possible to say that the pilot judgment procedure before the Constitutional Court is, by its very nature, influenced by the ECHR practice, as in many other aspects. Compared to the ECHR procedure, it is possible to say that we have encountered a young pilot judgment procedure in the practice of the Constitutional Court. It is clear that more judicial practice is needed to establish general standards in the pilot decisions of the Constitutional Court and to make the provisions of the Rules of Procedure comprehensible, applicable and meaningful. The discussions in the doctrine on the pilot judgment procedure of the Constitutional Court and the criticisms revealed by judicial decisions reveal that the pilot judgment procedure in the Constitutional Court as a human rights protection mechanism is on the way to maturity. In order to shed light on these criticisms, this study presents the normative and jurisprudential foundations of the ECHR practice, which constitutes the main axis of the Constitutional Court practice, the existing pilot judgments finalized before the Constitutional Court, the reflexes of the public authorities in the face of these judgments, in particular the legislature, and presents some suggestions for the improvement of the pilot judgment procedure in the context of human rights.
