Thursday, October 06, 2005

"Class Action" Litigation Before the ECHR

The European Court of Human Rights last week rendered its long-awaited “class action” settlement decision in Broniowski v. Poland. The case is here and the official press release summarizing the case is here.

The case involved systemic unlawful confiscation of property by the Polish government relating to the redrawing of Poland following the Second World War. In a June 22, 2004 decision, available here, the ECHR ruled that the claim of Broniowski also implicated 80,000 similarly-situated claimants and that Poland must address their claims for compensation as well. On March 7, 2005 the Polish government approached the ECHR and asked the Court to facilitate a friendly settlement between the claimants and the government.

In the class action settlement judgment (or the so-called “pilot judgment procedure”) issued last week, the Court justified the procedure as “primarily designed to assist the Contracting States in fulfilling their role in the Convention system by resolving such problems at national level, thereby securing to the persons concerned the Convention rights and freedoms…, offering to them more rapid redress and, at the same time, easing the burden on the Court which would otherwise have to take to judgment large numbers of applications…” (para. 34) According to the press release, “It is the first time that one of the Court’s judgments has set out general as well as individual remedial measures.”

The implications of such an approach are profound. The ECHR can now issue “pilot decisions” that will require systemic, national relief to a class of similarly-situated claimants. The governments will then negotiate with the claimants under the supervision of the Court and the Court will render its settlement judgment. Anyone who has any experience with class action litigation in the United States understands the potential implications of this procedural tool. Obviously there will be significant differences between the ECHR’s “pilot judgment procedure” and Rule 23 class actions in the United States. But human rights mass claims litigation has established a foothold in Strasbourg and no doubt has the potential to take Europe by storm.


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