Las sentencias piloto: el Tribunal Europeo de Derechos Humanos, de juez a legislador

Abstract

The European Court of Human Rights (ECtHR) has employed the pilot judgment procedure since the case of Broniowski c. Poland (2004). The procedure is considered one of the most creative measures developed by the ECtHR for dealing with repetitive cases (or «clone cases» as they are better known) derived from the same underlying systemic problem within a State. Inasmuch as the Court recognizes the existence of a problem of these characteristics, it adjourns proceedings involving identical cases and requires the State to adopt general measures. Thus, in the pilot judgment procedure, the individual dimension of an application is diluted —that is, as a subjective right— and there is a tendency to make applications more objective. At the same time, and on a very closely related matter, Protocol 14 of the European Convention on Human Rights introduces new elements that seek to provide guaranties for the enforcement of the judgments adopted by the ECtHR. This article analyses the extent to which the pilot judgments of the Court transcend their solely declarative nature making the judge in effect a legislator.