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 post-enlargement reforms aimed at transforming the European Court of Human Rights (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. It discusses why, contrary to opposing claims, the ECtHR's judgment in Doğan and Others v Turkey concerning the forced eviction of Kurdish civilians by the military is a pilot judgment. It then shows why this matters based on the Court's decision in _Içyer and Others v Turkey, which found a compensation law the Turkish Government adopted in response to Doğan to be an effective domestic remedy, and the Court's consequent rejection of 800-1,500 pending cases. Based on empirical research, 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 postconflict cases where the underlying problems are deeply rooted ethno-political disputes.