Monthly Archives: November 2014

Vulnerable workers in Central and East Europe: between European economic growth targets and offshoring

Introduction

The financial crisis that started when Europe slipped into recession in 2008/2009 raised a host of questions regarding productivity and employment. Potential problems deriving from the economic crisis, such as the decline of competitiveness, have been managed both through austerity policies and European programmes of loans to Central and European Countries (CEE).
As part of these measures, the EU, empowered by the EU Treaty and the principle of mutual assistance, adopted borrowing programmes, such as the Balance-of-Payments (BoP), specifically addressed to non-Eurozone Member States.). At the same time, because of austerity policies, taxes increased in the whole of Europe and the economic position of the most vulnerable Member States was made worse since this decreased their competitiveness and attractiveness to Foreign Direct Investment (FDI). Simultaneously, economies of developing countries, such as those in CEE, which were characterised by lower corporate taxes and limited wages, increasingly attracted FDI.
European stability, as promoted by the programmes of loans, seems to contrast with austerity policies which led to an increase in offshoring. In particular, because of higher taxes and increasing expenses in vulnerable Member States, many firms moved part of their production abroad, thereby exploiting the different levels of competitiveness between Member States. In this way, offshoring became a popular practice, since companies choose to outsource their production on the basis of lower labour costs and higher profitability. However, it can be argued that competitive edge and flexibility negatively impact worker protection, especially in those countries with lower social security standards. In fact, there is a correlation between vulnerability in working conditions and lower labour costs; in the host countries where enterprises relocate their productivity, the vulnerability of workers tends to be high. At the same time, within those European Member States which are outsourcing production, offshoring creates more job insecurity and precariousness.
It is suggested that it is only through European policies directed to ensure a minimum wage and adequate social protection to vulnerable workers that tangible levels of unemployment, job insecurity and unacceptable working conditions can be addressed. Moreover, these variations can, in fact, be the turning point for an improvement in the EU’s economy.

The Balance-of-Payments Facility (BoPF) and austerity policies

In the wake of 2008/2009 financial crisis austerity measures were announced in many EU Member States. Governments were called to implement credible adjustments in order to correct budget deficits and achieve the long term goals of ‘smart, sustainable and inclusive growth’ set out in the Europe 2020 Strategy . The States worst hit by the crisis were Latvia, Romania, and Hungary, which, as indicated above, received financial assistance from the European Union. Other European countries, within the Eurozone, had to undertake austerity policies, thereby encountering significant problems. In particular, the vulnerable states faced a large trade deficit and became unable to combat their substantial trade imbalances. This is aggravated by the fact that, since they are part of the Eurozone, they were unable to restore their competitiveness by devaluating their currency which is a typical measure adopted in these cases.
Art. 143 TFEU introduces a Balance-of-Payments (BoP) assistance programme aimed at strengthening the macroeconomic, fiscal and financial stability of non-Eurozone Member States and increasing the resilience and growth potential of their economies. As outlined in the Commission Work Programme 2014 and more widely in the Europe 2020 Strategy, the EU’s priority is to promote growth and job creation, particularly in small businesses. In line with this Strategy, medium-term financial assistance, established by Council Regulation (EC) No 332/2002 under the terms of specific legal duties of cooperation, has been provided to countries outside the Eurozone, even if the content and the legal implications of these duties are vague. Recently, €16 billion have been disbursed to Hungary (until 2010), Romania (until 2015), and Latvia (until 2012 before it adopted the euro).
However, the ongoing negotiations on the BoP show contrasting views on the actual effectiveness of these measures. There is an acknowledgement that loans programmes usually result in a general improvement in the overall economic situation. On the other hand, the financial stability and the growth perspectives of CEE countries remains an issue. In fact, the Commission criticised Hungary and Romania for their lack of political will to implement structural reforms. The last precautionary financial assistance programme for Romania was formally agreed upon in October 2013 (following two previous ones in 2009 and 2011 respectively). It is planned to extend until September 2015 providing general structural reforms largely related to improvements of equality, transparency in fiscal governance, public debit, monetary policies and FDI for innovations.
However, this EU programme fails to address the problem of labour exploitation. Probably, this lack of clarity creates a grey zone currently used by companies to take advantage of the differences in labour costs between Member States. In turn, this also affected the rights of workers in vulnerable states significantly, since they were pushed to review their policies on expenditure and taxes, to detriment of companies and workers. The political debates on the austerity measures focused mainly on the effects of the fiscal adjustments and the recession, while protecting the labour force has not been sufficiently taken into consideration, especially in terms of preventing their vulnerability

Offshoring to Central and Eastern Europe (CEE) and workers’ vulnerability

A strategy adopted by European companies to achieve competitiveness has been offshoring, that is, the relocation of production outside their own country. As noted above, this has allowed them to take advantage of lower taxes and less protective labour laws in order to reduce costs. In fact, the higher cost of doing business and the inflexibility of the labour market as a consequence of austerity policies encouraged companies to go abroad to manufacture (entirely or in part) their goods. The CEE countries are outside the euro zone and are close enough for the transport conditions to be favourable. These elements allow offshoring companies to exploit the differences in unit labour costs (ULCs) and labour productivity. Indeed, during the last decade CEE countries have received a significant amount of capital inflow to invest in productivity processes, especially in the manufacturing sector.
At the same time, in CEE countries the job quality has been measured as low and characterised as vulnerable. Indeed, according to the Organisation for Economic Co-operation and Development (OECD), workers’ vulnerability is a condition that is often simultaneously present with a certain level of poverty. Leschke et al. confirm this, reporting that there is a higher probability of low paid, unhealthy working conditions and unfair dismissal in the countries with the least adequate social protection systems. Offshoring seems to take advantage of the less favourable conditions of workers in CEE countries, thereby increasing their vulnerability. This practice is not illegal and part of the economic literature considers that, in the long term, it could be advantageous for both the offshoring and the target countries. However, when offshoring is driven by a cheaper labour force its intrinsic vulnerability becomes the main reason behind this choice of production.
Therefore, the European Union should be called to intervene on this point. The European Union has provided financial assistance to CEE countries, focusing on structural changes and political commitments, but it has not dealt with their working conditions. In particular, within the BoP framework, the Memorandum of Understanding concluded between the Commission and the Member States only mentions the ‘Economic policy conditions’, which include structural reform measures to improve business environment and support growth. Unfortunately, economic growth is not sustainable when it is based on poor and unsafe working conditions which encourage working poverty and inequalities. Accordingly, the ILO has provided evidence on how good quality jobs and social protection can in fact support economic growth.

Conclusion

Offshoring seems to take advantage of those conditions which are unfavourable to vulnerable workers. In order to protect these workers, a commitment to establishing a minimum wage and basic health, safety and welfare requirements should be written into contracts with providers, and measured and audited periodically. Interestingly, although the European Commission is highly committed to measuring competitiveness across Member States and the CEE countries, working conditions which generate this competitiveness seem to be largely ignored. Leaving aside any political considerations, the measures dealing with relocation should not be shaped around less favourable working conditions. Therefore, in promoting competitiveness the EU should seek to address specific policies to specific problems, rather than merely providing a service of strict economic surveillance over at risk countries or simply supporting non -Eurozone countries with loans.

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The contribution of the Appeals Chamber’s Judgment on witness summons to the debate on the compellability of witnesses before the International Criminal Court

Following a brief recess, today Trial Chamber V (A) at the International Criminal Court will continue to hear the testimony, by video link, of witnesses summoned by the Court in the case against William Samoei Ruto and Joshua Arap Sang. Just over a month ago, the Appeals Chamber unanimously confirmed that unwilling witnesses can be compelled to testify before the Court sitting in situ or by way of video-link.[1] In particular, the Appeals Chamber affirmed that the Court’s prerogative to “[r]equire the attendance and testimony of witnesses” under Article 64(6)(b) of the Rome Statute creates a legal obligation upon individuals which is complemented by a correlative obligation incumbent upon States, under Article 93(1)(b), to compel witnesses to appear on the territory of the State Party.

The question arose in 2013 when, shortly after the commencement of the trial, a number of witnesses who had previously provided the Prosecutor with crucial information about the role of the accused in the planning of the 2007 Post Election Violence in Kenya became unwilling to testify.[2] In April this year, in what was hailed as “a dramatic example of judicial activism[3] the majority in Trial Chamber V (A) decided that the Court had the power to compel the testimony of witnesses and that Kenya was obliged to serve the summonses and assist in compelling witnesses to appear before the Court in situ or by video link.  On that basis, Trial Chamber V(A) directed the Registry to prepare and submit “the necessary subpoenas”.[4] Judge Herrera Carbuccia dissented, noting, in particular, that “the Court has no mechanism to make an individual liable for refusing to testify in contravention of a Court order […] [c]onsequently, a fundamental element of subpoena powers is absent”.[5] Moreover, she held that “[p]ursuant to Article 93 of the Statute, read in its integrity, the Government of Kenya is under no legal obligation to compel a witness to appear before the court, either in The Hague or in situ”.[6]

The ambiguity stems from the arguably incongruous provisions of the Rome Statute, which have raised some doubts about the precise parameters of the Court’s power to summon witnesses and the concomitant enforcement obligations of States Parties. The first question is whether the Court’s power, under Article 64(6)(b), creates a binding obligation upon individuals. The word “require” has, in itself, cast a doubt upon the intended force of the provision,[7] particularly since failure to follow such an order is not listed as an offence against the administration of justice under Article 70.[8]  Trial Chamber V (A) and the Appeals Chamber determined, however, that any order issued under this article has the effect of creating a legal obligation on individuals; this is supported by various translations of the Statute which use the term “order” instead of “require”.[9] Although both Chambers ultimately relied squarely upon the letter of the Statute, in its analysis the Trial Chamber referred extensively to the Court’s implied powers, as well as general and customary principles of international law, and good faith;[10] the Appeals Chamber relied solely on the “plain wording” of the Statute.[11]

The greater difficulty, however, arises less from Article 64(6)(b) taken in isolation and more from the fact that the power it creates appears to be rendered largely ineffective by the absence of any specific provision in the Statute obliging States Parties to compel witnesses to appear before the Court. This is particularly problematic in view of the express provision, under Article 93(1)(e) requiring States to facilitate “the voluntary appearance of persons as witnesses […] before the Court”. This would suggest that witnesses can only appear before the Court voluntarily. The situation is rendered more complex by Article 93(7), which entitles a person already detained on the territory of a State Party to refuse to be temporarily transferred to the seat of the Court for the purpose of testifying.

The apparently conflicting statutory provisions have evoked different responses from commentators.[12] One interpretation suggests that while the Court can order the appearance of a witness, States cannot be required to deliver witnesses who are not willing to testify.[13] Some argue that this does not prevent willing States from adopting enhanced forms of cooperation which would compel witnesses to appear to testify,[14] although there is some disagreement regarding whether they can be compelled to travel to do so.  Others have suggested that the principle of voluntariness applies only to international transfers; that is, while witnesses cannot be forced to travel across borders to testify, they could well be compelled to testify before the Court without travelling. This would mean that Article 93 (1)(e) only applies to the international transfers of witnesses; States could still be obliged to compel witnesses to appear before the Court sitting in situ or by way of video link under the catch-all provision in Article 93(1)(l) which allows the Court to request other forms of cooperation, so long as these do not contravene States Parties’ national laws.

Although this interpretation finds significant support and appears to be consistent with the traveaux preparatoires[15] it might not be the most obvious one from a plain reading of the Statute. Article 93(1)(e) refers to the voluntary appearance of witnesses “before the Court”, not “at the seat of the Court”. While it could be argued that a video-link between a witness summoned before a national court and the Trial Chamber might not be covered by this restriction, it is not clear that this holds true where the Court is, itself, in control of the proceedings, whether on the territory of a State party or remotely. Would this understanding somehow imply that witnesses appearing directly before the Court, in situ or by video link, are not actually appearing ‘before the Court’?

Divergence is not only limited to the academic commentary on the topic; a questionnaire carried out by the International Law Association’s Committee on the International Criminal Court, prior to the 2010 review conference in Kampala, shows that States Parties not only hold different views on any possible future provisions to directly include subpoena powers in the statute but, more importantly, they appear to have different understandings of the precise parameters of the current provisions.[16]

Ultimately, both Trial Chamber V (A) and the Appeals Chamber have categorically rejected the notion that under the terms of the Rome Statute, testimonial evidence is governed by a principle of voluntary appearance. Trial Chamber V (A), again broadly relying, inter alia, on implied powers, good faith and complementarity, held that the Court can oblige Kenya to enforce a summons on the basis of Article 93(1)(l).[17] In its decision, the Trial Chamber also repeatedly referred specifically to the Court’s subpoena powers.

The Appeals Chamber adopted a different, if more cautious, approach. The Appeals Chamber determined that the power of the Court to oblige Kenya to enforce the summons stems directly from Article 93(1)(b) which, inter alia, empowers the Court to oblige States to assist in “the taking of evidence, including testimony under oath” and the production of evidence before the Court. This interpretation of the provision, while not a radical innovation,[18] requires a fairly creative reading of the Statute. Indeed, the wording of Article 93(1)(b) which refers to assistance in “the taking of evidence” seems to refer to the collection of evidence by States themselves.[19] That being said, it would appear that some States do, indeed, consider that this interpretation is consistent with their implementing legislation.[20]

By relying upon Article 93(1)(b), the Appeals Chamber appears to have strengthened the position of the Court. While the chapeau of Article 93 provides that States Parties are to give effect to the requests under the procedures of their national laws, a State is only permitted to refuse compliance in the interests of national security;[21] on the other hand, under Article 93(1)(l) whenever a State cannot comply with a request due to a “fundamental principal of general application”,[22] it is entitled to attempt to resolve the matter with the Court. Therefore, by determining that the relevant provision is Article 93(1)(b), and not Article 93(1)(l) as suggested by Trial Chamber V (A), the Appeals Chamber has curbed recourse to national provisions as a way to bypass a summons request which is effectible on the territory of the State.

At the same time, however, the Appeals Chamber deliberately stopped short of declaring that the Statute creates an absolute obligation upon States to compel witnesses to appear at the seat of the Court, limiting its observations to the matter under Appeal, namely the compellability of witnesses appearing before the Trial Chamber sitting in situ or by way of video link.[23] Moreover, unlike the Trial Chamber, the Appeals Chamber appears to have purposefully avoided using the term subpoena.

In short, while the Appeals Chamber has intentionally shied away from some of the more radical positions taken by the Trial Chamber, it has, nevertheless shaped the interpretation of witness compellability within the Statute’s framework, possibly overstepping the boundaries of mere interpretation. However, it has avoided any pronouncement on a broad, general power to ‘subpoena’ witnesses, thereby steering clear of the the more controversial, unresolved issues related to the involuntary international transfer of witnesses and the absence of any direct coercive powers.

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Directive 2014/41/EU on the European Investigation Order and the protection of a minimum level of procedural rights

On 7th March 2014 the European Parliament and the Council of the European Union adopted Directive 2014/41/EU on the European Investigation Order (EIO), which aims at providing Member States with a number of minimum standards in criminal evidence matters.[1] In this respect, the Directive at issue should be seen as one of the results of the European Union’s increasing interest on the principles of fair trial, including those relating to the pre-trial phase. This post attempts to assess the impact of Directive 41 on the EU’s efforts for a minimum standard of procedural rights for accused and suspected persons.

According to the relevant European Union’s primary and secondary sources – including Directive 2014/41/EU – all Member States must provide for a minimum level of guarantees connected to the right of defence, irrespective of the specific judicial system in force in each country. In particular, in December 2009, following the entry into force of the Lisbon Treaty, the European Council adopted the Stockholm Programme, which aimed at reforming the ‘current patchwork of rules’ and providing a single instrument in relation to the gathering of evidence in the EU.[2] This Programme also promoted a minimum level of procedural rights for accused and suspected persons, as a result of the new role played by both the European Union Charter of Fundamental Rights and the European Convention on Human Rights.

In examining Directive 41, one can identify a number of references to earlier EU instruments addressing such procedural rights. Indeed the 2nd, 12th, and 15th Whereas make reference to the Treaty on the Functioning of the European Union (TFEU), the EU Charter of the Fundamental Rights, and the three post- Roadmap Directives.[3]

In particular, Article 82 TFEU underlines the importance of the approximation of law and regulations, including those relating to such procedural rights, among Member States. This position is reiterated in Directive 41 that explicitly refers to Article 82 TFEU and to the main pillars of Judicial Cooperation in Criminal Matters, namely the principle of mutual recognition of judgments and that of mutual confidence between Member States. Accordingly, from Article 82 TFEU, and subsequently Directive 41, derives the necessity to provide minimum common rules in relation to the rights of individuals in criminal procedure.

The Directive also makes reference to the relevant provisions of the EU Charter, namely Articles 48 (concerning the presumption of innocence and all the rights of defence in criminal proceedings) and 52 (regarding the protection of the rights and freedoms of others). This reference is not a coincidence as it reflects the current importance of the EU Charter of Fundamental Rights in this field. Article 48, which shares the same content as Article 6 (2) and (3) of the ECHR, focuses on the right to defence and the presumption of innocence; while, Article 52, that is among the general provisions of the Chapter 7, highlights the importance of the scope of the rights and freedoms recognised by the Charter (and by the ECHR as well). Directive 41, through these references, underlines the need for building a new system of evidence and investigations in criminal matters based on these supreme principles.

In line with its efforts for the establishment of such minimum standards of procedural rights in criminal proceedings, the EU Council adopted, on 30 November 2009, a Resolution on a Roadmap for strengthening such rights.[4]As a consequence, the EU adopted the following directives: Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings; Directive 2012/13/EU on the right to information in criminal proceedings; Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty. Accordingly, the adoption of these Directives acted as a first great step towards recognising and also applying the common general principles provided by both the EU Charter and the ECHR in regard to procedural rights. Thanks to them, the EU has for the very first time a list of the most important procedural rights, such as: the right to information, the right to access to a lawyer as soon as possible, the right to interpretation and translation, regardless of the personal condition of both the accused and the suspected person. Although Directive 41 is supposed to intervene in the specific field of evidence and investigation’s matters, its reference to these other Directives shows that the new-born system should act in compliance with the catalogue of rights drowned by post Roadmap Directives.

As it has been demonstrated, a reading of Directive 41 indicates that it has been conceived to be in compliance with these earlier  instruments  and consequently shares the same rationale. Indeed, it is not a coincidence that the 10th, 18th, 19th, and 39th Whereas make reference to the supreme interest of protecting the fundamental rights of accused and suspected persons, while balancing it with the European Investigation Order’s needs. Similar statements can also be found in Chapter I, article 1, paras. 3 – 4, and Chapter II, article 6, paras. 1 (a), which underline the importance of taking into account the right of defence when issuing a European Investigation Order.

Nevertheless, despite the efforts of Directive 41 to further the EU’s aim of setting a minimum standard of procedural rights for the accused and suspected persons, applying these rights in practice may be a challenge. Indeed, the mere declaration of principles regarding the minimum rights of accused and suspected persons may not be adequately enforced by Member States. Specifically, it is still unclear how suspected and accused persons would balance their rights with all the other powers involved in criminal proceedings, such as the Prosecution’s powers. One of the main obstacles to the realisation of this goal is that Directive 41 does not take into account the differences between the judicial systems of Member States and how this makes the application of such standards more difficult.

In brief, as long as each Member State continues to regulate its own procedural instruments in criminal matters without taking into account either the other Members States’ rules, or the European minimum common rules, ensuring an effective protection of procedural rights, including those linked to the field of the rules of evidence, will remain an unattainable ideal.

[1] As for the Directive’s precedents, see the Council Framework Decision 2003/577/JHA of July 2003 on the execution in the European Union of orders freezing property or evidence, and the Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters.

[2] De Capitani – Peers, The European Investigation Order: A new approach to mutual recognition in criminal matters, available on EU Law Analysis, http://eulawanalysis.blogspot.it/.

[3] We are talking about the Road Map on procedural rights which was adopted in 2009 by the Justice Council, see http://ec.europa.eu/justice/criminal/criminal-rights/index_en.htm. .

[4] Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, text available on http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2009:295:0001:0003:en:PDF.

 

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‘Varnava and Others’ and ‘Xenides-Arestis group’ cases: Just Satisfaction or Just the Status Quo? The Effectiveness of the Committee of Ministers’ Current Execution Mechanisms

The Committee of Ministers (CoM) held its third special human rights meeting between 23rd– 25th September 2014; its main purpose was to examine the state of execution of a number of European Court of Human Rights’ (ECtHR) judgments. These included the judgments delivered against Turkey relating to its military operations in Cyprus in 1974, specifically Varnava[1] and the Xenides-Arestis group cases.[2] Using these judgments and their state of execution, this post critically assesses the effectiveness of the execution mechanism of the ECtHR, focusing on the non-conformity of Sates with just satisfaction awards.

Final ECtHR judgments are predominantly declaratory in nature, establishing breaches of Convention rights by the State Party in question, leaving the domestic authorities with a discretion to decide as to the specific implementation measures to be adopted. In addition to the declaratory judgments the Court may also award monetary awards, known as ‘just satisfaction’, which comprise of pecuniary and non-pecuniary damage, and/or costs.[3] The CoM is the body responsible for supervising the execution of the Court’s final judgments, including awards of just satisfaction. Accordingly, it has been responsible for supervising the execution of the Varnava and Xenides-Arestis group cases.

In the case of Varnava, the applicants alleged that their relatives had disappeared after being detained by Turkish military forces and that the Turkish authorities have not accounted for them since. The Court found that there has been a continuing violation of Articles 2, 3 and 5 of the ECHR. It also awarded, as just satisfaction, the sum of EUR 12,000 in non-pecuniary damages to each of the applicants and EUR 8,000 for costs and expenses.[4] The Xenides-Arestis group cases were brought against Turkey on the ground of a continuing violation of Article 1 Protocol No.1, and in some of the cases Article 8, due to the prevention, by Turkish military forces, of the applicants’ access and use of their properties in the northern part of Cyprus. The ECtHR, in addition to making a declaratory judgment in all thirty-three cases, awarded each applicant with a specified amount as just satisfaction.[5]

Despite the obligation of State Parties to ‘(…) abide by the final judgment of the Court in any case in which they are parties’,[6] Turkey has yet to take any steps towards the implementation of these judgments. The CoM has adopted Interim Resolutions for some of these cases in numerous previous meetings, calling Turkey to comply with its obligations and pay the sums awarded.[7] This issue returned to the Committee’s agenda in September 2014 at the meeting where a new Interim Resolution was adopted. However, the question that arises is whether this is yet another empty threat towards Turkey, or whether the effect of this latest resolution will be the catalyst for Turkey’s compliance with its ECHR obligations.

With this current Interim Resolution, the Committee has adopted a comparatively tougher tone to demonstrate the seriousness of Turkey’s failure to comply and the exigency for the State to do so, declaring explicitly that ‘(…) this continued refusal by Turkey is in flagrant conflict with its international obligations, both as a High Contracting Party to the Convention and as a member State of the Council of Europe;’[8] While this wording may seem promising, the recurring question is whether the Committee possesses the power to force a State into complying, or whether it all depends on the willingness of the respective State to abide by this obligation.

Following Protocol No.14, the CoM has acquired further powers in the supervision of the execution of final judgments. In addition to measures such as diplomatic pressures, the issuing of interim resolutions against non-compliant States, and the adoption of decisions and press releases, the Committee now has the power to make referrals to the Court. It can refer a case where interpretation of the final judgment is required,[9] as well as ask the court to initiate infringement proceedings, where the respective State fails to abide by a final judgment.[10]

It could be argued that the Interim Resolutions measure employed in Varnava and Xenides-Arestis is sufficient to push States, such as Turkey, into reconsidering their position and making the just satisfaction payments. This could be substantiated in relation to the cases in question, if one considers the steps previously taken by the Committee in the Loizidou judgment, the first case brought against Turkey on the basis of Article 1, Protocol 1.[11] The Committee adopted Interim Resolutions, in which they strongly urged Turkey’s compliance with its obligation to pay the just satisfaction awarded, declaring that it was prepared to take any measures necessary if the sum was not paid.[12] Even though Turkey insisted that such an award ‘(…) would undermine the negotiations between the two communities and would spoil the efforts to reach a settlement’,[13] it eventually complied, paying the sum awarded. One could therefore support that since the Interim Resolutions measure has in the past been an effective approach towards Turkey and the Greek-Cypriot cases, it can likewise be sufficient in pushing Turkey to abide by its obligations in the current cases.

Nevertheless, one must bear in mind the particular circumstances under which Turkey complied in Loizidou. According to the erstwhile Turkish Minister of Foreign Affairs, the government and the CoE had reached an understanding in which Turkey’s agreement to abide by the judgment would not set a precedent.[14] The existence of such an understanding is both doubtful and unsubstantiated when one notes the purpose and spirit of the ECHR, coupled with the lack of a corresponding agreement by the CoE. Notwithstanding this, Turkey’s stance indicates that it welcomed this judgment as a one-off case and was not prepared to create a precedent for subsequent cases.

One must further note that the delayed decision of Turkey to comply with Loizidou followed the commencement of the State’s EU membership preparations preceding the accession negotiations, which began in October 2005. In May 2003, some months prior to Turkey’s implementation of the judgment, the European Council had adopted an Accession Partnership in which it highlighted that Turkey’s respect for the ECtHR judgments was a priority for moving forward with the negotiations.[15] Furthermore, in Turkey’s 2003 Progress Report, the European Commission mentioned specifically the State’s non-implementation of Loizidou.[16] This suggests that political pressures to meet the threshold for opening the accession negotiations likely contributed to Turkey’s eventual compliance with this judgment, arguably to a greater extent than the Committee’s use of Interim Resolutions.

It can be argued that the current economic and geopolitical state could equally work as an incentive for compliance with these judgments. While arguments arise as to whether Turkey still aspires to join the EU, the adoption of an EU Strategy in September 2014 indicates that officially Turkey continues taking steps towards accession.[17] Yet, any prospect of concluding the negotiation stage and adopting an Accession Treaty is dependent on the opening and closing of the thirty-five Chapters of the Acquis, including Chapter 23 on the Judiciary and Fundamental Rights. This Chapter has been blocked since 2009 for various reasons, including Turkey’s non-compliance with the judgments in question. Therefore, if Turkey wishes to proceed with its accession, it will need to reconsider its stance on fundamental rights including, as noted by the Commission in Turkey’s 2014 Progress Report, implement all pending ECtHR judgments.[18] Therefore, such interim resolutions, which publicise Turkey’s non-compliance with these judgments, could be used as a basis for Chapter 23 remaining closed. A more pro-active approach, proposed by one of the applicants’ representatives, could have the CoM explicitly recommending the continuation of the blocking of Chapter 23 until these judgments have been enforced.[19]

While Turkey’s accession to the EU may well be a good way to incentivise compliance, the reality remains that the CoM’s current efforts in relation to these judgments have been ineffective. One could argue that if Turkey maintains its current position, refusing to abide by this obligation, the CoM may decide to use the Article 46 (4) infringement proceedings power and refer back to the ECtHR for a decision on whether the State has failed to fulfil its implementation obligations. Nevertheless, one must appreciate that a State that has repeatedly ignored calls, through interim resolutions and other diplomatic pressures, to comply with final judgments, may equally maintain this position in relation to any infringement proceedings’ judgment, simply refusing to comply.

The question of whether the CoM can force Turkey’s compliance becomes even more important when one considers the recent judgment of Cyprus v Turkey.[20] Here, the Court awarded the Cypriot Government the substantial amount of EUR 90,000,000 in non-pecuniary damages for the sufferance of the relatives of missing Greek Cypriots and enclaved Greek Cypriot residents in the Karpas Peninsula. Therefore, it will be interesting to see the approach of the CoM in supervising the execution of this judgment, as well as the attitude and position of Turkey on the matter.

These two cases will be reconsidered by the CoM at its 1214th meeting in early December 2014. It thus remains to be seen whether the outcome of this meeting will see Turkey backed into a corner with no other choice than to comply, or whether we will witness the maintenance of the status quo, namely strong condemnation, yet empty threats.

[1] Varnava and Others v. Turkey, Application nos. 16064/90, 16065/90/, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90 (ECtHR, 18 September 2009)

[2] Xenides-Arestis v. Turkey, Application no. 46347/99 (ECtHR, 22 March 2006); Xenides-Arestis v.Turkey (Just satisfaction), (ECtHR, 23 May 2007); 32 other cases against Turkey were grouped together with this judgment for the purposes of supervision of execution, referred to as Xenides-Arestis group cases.

[3] Article 41 ECHR

[4] Varnava and others, para 225

[5] See for example Xenides-Arestis v.Turkey (Just satisfaction), Application no. 46347/99 (ECtHR, 23 May 2007);

[6] Article 46 (1) ECHR

[7] See Interim Resolutions CM/ResDH (2008)99 and CM/ResDH (2010)33 adopted respectively in 2008 and 2010 in the case of Xenides-Arestis and Interim Resolution CM/ResDH (2013)201 adopted in 2013 in the Varnava case.

[8] Interim Resolution CM/ResDH(2014)185 in the cases Varnava, Xenides-Arestis and 32 other cases against Turkey (Adopted by the Committee of Ministers on 25 September 2014 at the 1208th meeting of the Ministers’ Deputies)

[9] Article 46 (3) ECHR

[10] Article 46 (4) ECHR

[11] Loizidou v. Turkey, Application no. 15318/89 (ECtHR, 18 December 1996); Loizidou v. Turkey, (Article 50) (40/1993/435/514), (ECtHR, 28 July 1998)

[12] See Interim Resolution ResDH(2003)174 (Adopted on 12 November 2003 at the 860th meeting of the Ministers’ Deputies); Interim Resolution ResDH(2001)80 (Adopted on 26 June 2001 at the 757th meeting of the Ministers’ Deputies); Interim Resolution DH(2000)105 (Adopted on 24 July 2000 at the 716th meeting of the Ministers’ Deputies); and Interim Resolution ResDH(99)680 (Adopted on 6 October 1999 at the 682nd meeting of the Ministers’ Deputies)

[13] Loizidou (Article 50) para 21

[14] As reported in BBC news ‘Turkey compensates Cypriot refugee’ (2 December 2003) available at http://news.bbc.co.uk/1/hi/world/europe/3257880.stm> last accessed 29/10/14

[15] Council Decision of 19 May 2003 on the principles, priorities, intermediate objectives and conditions contained in the Accession Partnership with Turkey, 2003/398/EC, OJEU, L145/40 (12 June 2003) p.43

[16] European Commission, ‘2003 Regular Report on Turkey’s Progress towards Accession’, pp. 24, 41

[17] Republic of Turkey, Ministry for EU Affairs, ‘Turkey’s European Union Strategy: Determination in the Political Reform Process, Continuity in Socio-Economic Transformation, Effectiveness in Communication’ (Ankara, September 2014)

[18] European Commission, ‘2014 Turkey Progress Report’, p. 48

[19] Communication from the applicants’ representative (12/02/2014) in Xenides-Arestis group against Turkey (Application No. 46347/99), Prior to the Committee of Ministers’ 1193 meeting (4-6 March 2014) (DH)

[20] Cyprus v. Turkey (Just Satisfaction), Application no. 25781/94 (ECtHR, 12 May 2014)

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