Case of the Month: Broniowski v. Poland

My vote for the most important international law case of the month is Broniowski v. Poland, the ECHR decision that paves the way for “class action” human rights litigation in Europe. As discussed in my earlier post, an international tribunal in Europe may now order systemic, national relief to a class of similarly-situated claimants. The decision that launches this “pilot judgment procedure” is here and the press release discussing the decision is here.

Under the “pilot judgment procedure” the Court will render a principal judgment finding a violation that is systemic and widespread and will order the national government to provide general measures at the national level to redress the wrong. Once the national government has done so, it may approach the Court and request assistance in settlement talks with the claimant. In Broniowski the Court actively assisted in settlement negotiations between the parties. Once a settlement is reached, the Court will approve the settlement and strike the application from the list.

The decision is significant for several reasons. First, the ECHR had become a victim of its burgeoning caseload. According to its annual report, in 2004 it rendered 21,000 decisions, the overwhelming majority of which were deemed inadmissible. Over 700 full judgments were rendered by the Court. With 45 judges on the Court, that is 466 decisions and 15 full judgments per judge per year. ECHR judges are nearing a point of institutional incapacity to handle the work. A class action procedure affords a way to treat similarly-situated claimants together. As the Broniowski Court put it, “One of the relevant factors considered by the Court was the growing threat to the Convention system and to the Court’s ability to handle its ever-increasing caseload that resulted from large numbers of repetitive cases deriving from, among other things, the same structural or systemic problem.” (para. 35).

Second, the Court is not focusing simply on resolving individual cases. It is now focusing on systemic wrongdoing. “In view of the systemic or structural character of the shortcoming at the root of the finding of a violation in a pilot judgment, it was evidently desirable for the effective functioning of the Convention system that individual and general redress should go hand in hand.” (para. 36). The Court can thus order a national government to provide redress to thousands of similarly-situated victims.

Third, the Court can order a national government to provide a specific type of class remedy. In this case, the Polish government was required to pay compensation to all affected claimants. It established a “right to credit” scheme that offered claimants 20% of the original value of their property.

Finally, the systemic wrong that was at issue occurred in the 1940s and early 1950s. The ECHR was established in 1953. The Court is ordering retroactive class relief for violations that originally occurred prior to the Court’s existence.

There are huge risks and rewards with class action litigation, as any American litigator can attest. With class action litigation, courts veer precariously close to performing legislative functions. In the European context unfamiliar with this novel device, the “pilot judgment procedure” may become one of the most important new developments in human rights litigation.