Forsaking Individual Justice: The Implications of the European Court of Human Rights’ Pilot Judgment Procedure for Victims of Gross and Systematic Violations

Abstract

The Council of Europe's enlargement rendered reforming the European Court of Human Rights (ECtHR) inevitable. The post-1998 reforms aimed at transforming the ECtHR into a quasi- constitutional court and enhancing its efficiency. This article is concerned with one such reform, ‘the pilot judgment mechanism’, and contests the desirability of its application to gross and systematic violations. The article discusses why, contrary to opposing claims, the ECtHR’s judgment in Dogan and Others v Turkey concerning the forced eviction of Kurdish civilians by the Turkish military is a pilot judgment. It then shows why this matters, based on the Court’s Icyer decision which found a compensation law the Turkish government adopted in response to Dogan and Others to be an effective domestic remedy and rejected 800-1,500 pending cases. Based on empirical research on the implementation of this law, the article argues that in applying the pilot judgment to the Kurdish cases, the ECtHR reduced the notion of ‘effective remedy’ to compensation, overlooking the victims’ demands for truth and justice, and enabled Turkey to continue to commit gross violations with impunity. It concludes that while pilot-judgments might be effective in handling repetitive cases arising from systemic legal problems in post-communist contexts, they should not be applied to conflict or post-conflict cases where the underlying problems are deeply-rooted ethno-political disputes.