11 March 2016

Forsaking individual justice: The implications of the ECtHR’s pilot judgment procedure for victims of gross human rights violations

Wednesday 11 March, 2 – 3.30 p.m. Room 3.30, Hertie School of Governance

The European and Global Governance Colloquium at the Hertie School of Governance, co-hosted with the Dahrendorf Research Programme invites to a Public Colloquium.

Dilek Kurban, Marie Curie Fellow, Hertie School of Governance and Co-Chair of the Dahrendorf Working Group Europe and Turkey relations

speaks on

Forsaking individual justice: The implications of the ECtHR’s pilot judgment procedure for victims of gross human rights violations

Abstract

The Council of Europe’s post-Cold War expansion had transformative implications for the European Court of Human Rights (ECtHR/ the Court). The rapid increase in the number of member states rendered the Court’s already heavy case load unmanageable, making structural reforms inevitable. The reform process which started in 1998 aimed at rendering the European Convention system more efficient, transforming the ECtHR into a quasi-transnational constitutional court, and enhancing the domestic effect of the Court’s judgments. This paper is concerned with one of these reforms known as “the pilot judgment mechanism,” received by scholars and practitioners as a creative adjudicatory tool to address repetitive cases arising from a systemic problem in domestic law or practice. The purpose of this paper is to contest the desirability of applying this mechanism to human rights violations in the context of an armed conflict. The paper first discusses why, contrary to opposing claims in the literature, the ECtHR’s Dogan and Others v. Turkey (2004) judgment 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 (2006) decision which found a compensation law, hastily adopted by Turkey to win an inadmissibility decision, to be an effective domestic remedy and rejected the 1,500 pending Kurdish cases. Based on empirical research on the implementation of the compensation law, the paper argues that in applying the pilot judgment to the Kurdish cases, the ECtHR enabled the Turkish government to reduce the notion of “effective remedy” to payment of compensation and not address the victims’ demands for truth, accountability and justice. While the pilot-judgment procedure might indeed be an effective tool for ‘simple’ cases concerning lengthy trials or post-communist property violations which often stem from a malfunctioning legislation, the paper claims, it should not be used to address conflict or post-conflict cases in Russia and in Turkey where the underlying “systemic” problems are deeply-rooted ethno-political disputes.

Please register by sending an e-mail to Nina Hall at Hall@hertie-school.org and to receive a copy of the paper. This event is open to the public, please share this notice with colleagues and friends.