Author Archives: Daphne Demetriou

‘Taking no prisoners’: The UK’s stance on ECtHR judgments in relation to prisoners’ voting rights

On 10th February 2015, the European Court of Human Rights (ECtHR) delivered yet another judgment against the UK’s ban on prisoner voting. McHugh[1] comes three months before the UK general elections on 7th May 2015. The latest judgment is conspicuously brief and restates what has been proclaimed in numerous previous cases. Yet, it serves as a reminder of the precarious relationship between the ECtHR and the UK. This post revisits the landmark decisions against the UK on the issue of prisoners’ voting rights; examines the current position adopted by the UK government on this issue; and looks ahead to the uncertainty of prisoners’ voting rights under this government and the next.

McHugh originated in 1,015 applications against the UK lodged by prisoners. They alleged that section 3 (1) of the Representation of People Act 1983 (RPA 1983), that prevents convicted prisoners from voting in parliamentary and local elections, violated their rights under Article 3, Protocol 1 ECHR. In particular, they claimed that they were prevented from voting in a number of elections including: the European Parliamentary Elections; the UK Parliamentary elections; and elections to the Scottish Parliament, the Welsh Assembly or the Northern Irish Assembly.[2]

The Court notably refrains from delving into detailed analysis of the merits and simply states that since the impugned legislation remains unchanged, it cannot but conclude, once again, that there has been a violation of Article 3 Protocol No.1.[3] The brevity of this judgment can be read as evidence of the Court’s frustration with the UK government’s continuous disregard of its judgments on the issue.

The Court adjudicated on the UK prisoners’ voting ban for the first time in Hirst (No.2)[4] where, while acknowledging that States have a wide margin of appreciation when it comes to organising and running their electoral systems,[5] it stated that the conditions imposed by States ‘…must not thwart the free expression of the people in the choice of the legislature…’[6] While the Court accepted the UK’s claim that the ban pursued the legitimate aim of preventing crime, by sanctioning the conduct of convicted prisoners and enhancing civil responsibility and respect for the rule of law,[7] it held that the measure was not proportionate to this aim. Specifically:

‘The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation… and as being incompatible with Article 3 of Protocol No. 1.’[8]

This position was restated five years later in Greens and MT where the Court found a violation of Article 3 Protocol 1 as the UK had failed to amend its electoral law.[9] What is noteworthy in this case is that the ECtHR went a step further and stated that a timetable for introducing the amendments to the electoral law was required. Accordingly, it imposed a six-month deadline for the UK.[10]

The Court reiterated its declaration of the illegality of the absolute and indiscriminate ban on prisoner voting in Scoppola (No.3).[11] The Court held that the Italian ban did not have the general, automatic and indiscriminate character of the UK ban as:

‘…there is no disenfranchisement in connection with minor offences or those which, although more serious in principle, do not attract sentences of three years’ imprisonment or more, regard being had to the circumstances in which they were committed and to the offender’s personal situation…’[12]

Although proclamations by the ECtHR that the UK electoral law breaches Article 3 Protocol 1 have been made loud and clear in the past 10 years, an examination of the actual steps taken so far by the UK casts aspersions on the government’s intentions to conform and amend its legislation.

While it may be hard to surpass the Prime Minister’s comment in 2011 that the thought of giving prisoners the right to vote made him ‘physically ill’,[13] one must examine any positive steps taken by the government so far towards amending its electoral law. Following Hirst, two public consultations on prisoners’ voting rights were held, yet no amending legislation was introduced.[14] Prisoners were accordingly prevented from voting in a number of elections, including the 2010 general elections. Additionally, the House of Commons overwhelmingly adopted a cross-party motion supporting the preservation of the current ban on prisoner voting.[15]

Following further pressure by the Court and the Committee of Ministers (CoM), on 22nd November 2012 the UK published the Voting Eligibility (Prisoners) Draft Bill. This bill set out three options for prisoners’ voting, namely: a ban for prisoners sentenced to four years or more; a ban for those sentenced to more than six months; and the retention of the current ban applying to all convicted prisoners.[16] While the two first options can be seen, at least in theory, as amending the absolute ban on prisoner voting, the last option can be interpreted as the government’s way of asserting its sovereignty and its independence by explicitly legislating contrary to ECtHR jurisprudence.[17] As noted by the Joint Select Committee appointed to conduct pre-legislative scrutiny of the Bill, the option of retaining the current ban, ‘would not only undermine the international standing of the UK; it would also give succour to those states in the Council of Europe who have a poor record of protecting human rights and who may draw on such actions as setting a precedent…’[18]

Despite the drafting of this Bill, the UK has yet to take any steps towards its implementation. This inactivity emphasises the continued conflict in the relationship between the ECtHR and the UK. The relationship between the two continues to be fractious, reflected not only in the case law of prisoner voting, but also in myriad other areas.[19] Yet, what marks the prisoner-voting situation as separate from other conflicts between the UK and the ECtHR is the confrontational stance adopted by them both. Here, the UK has pugnaciously defied the Court by proposing a version of the Bill that retains the current indiscriminate ban on prisoner voting, moving beyond its usual ‘declaration of incompatibility’.[20] At the same time, the Court has chosen to adopt a more proactive stance, and rather than leaving it to the CoM alone to supervise the execution of these judgments, set, for the first time in relation to the UK, a time-limit within which the UK had to introduce amendments to its electoral law. Therefore, the image broadcasted is one of brinkmanship, with neither the Court, nor the UK backing down.

The Court has been criticised as overstepping its role in these cases. According to the dissenting judges in Hirst, ‘the Court is not a legislator and should be careful not to assume legislative functions.’[21] The UK government shared this view, asserting that the decision as to whether legislation should be passed allowing prisoners to vote is one for Parliament to take and not the ECtHR.[22]

An examination of both Hirst and Greens and M.T. contradicts this view that the Court has overstepped its role. While it determined that the current ban is absolute and indiscriminate, violating Article 3 Protocol 1, it explicitly acknowledged the wide margin of appreciation afforded to States under this right; noting that it is left to the national authorities to decide how to comply with these obligations. Importantly, in Greens and M.T., even though it set the deadline of six months for the UK, it explicitly recognised that it does not have the power to direct the State as to the specific content of this legislative reform.

The Court has therefore simply upheld its role of safeguarding human rights, reiterating the principle that blanket bans and restrictions on human rights are not proportionate. It has not tried to give the right to vote to all prisoners; it merely stated that what violates Article 3 Protocol 1 is the absolute and indiscriminate nature of section 3(1) RPA 1983. Importantly, even if one opines that the Court’s judgments went too far, this alone does not excuse the UK’s disregard of them, especially not such a brazen defiance. As Letsas noted, ‘the United Kingdom cannot pick and choose which judgments of the Court to comply with, without undermining the long and painful process of establishing a Europe of rights, democracy and the Rule of Law.’[23]

Bearing in mind the current situation, the question remains: where does the UK’s inertia on the issue of prisoner voting leave prisoners who wish to vote in the coming elections? The government’s stance is clear, stating that further discussion of the issue is deferred until September 2015, four months after the elections. Yet, what becomes apparent is that proponents of an amendment to the current indiscriminate ban on voting will struggle to find a supportive party to break the cycle of disobedience and comply with the Court’s judgments. The Conservatives have declared that they are prepared to leave the ECHR if Strasbourg does not accept their demand of making the Court’s judgments merely advisory.[24] At the same time, while the Labour party has pledged to keep the country in the ECHR,[25] when in power, failed to take any action to amend the electoral law and subsequently voted in favour of retaining the current ban.[26] Therefore, whether the issue will indeed be addressed in September remains to be seen.

[1] McHugh and Others v United Kingdom App no 51987/08 and 1,014 others (ECtHR, 10 February 2010).

[2] Ibid., para 5.

[3] Ibid., para 11.

[4] Hirst v United Kingdom (No.2) App no 74025/01 (ECtHR, 6 October 2005).

[5] Ibid., para 61.

[6] Ibid., para 62.

[7] Ibid., para 75.

[8] Ibid., para 82.

[9] Greens and M.T. v United Kingdom App nos 60041/08 and 60054/08 (ECtHR, 23 November 2010)

[10] Ibid., para 115.

[11] Scoppola v Italy (No.3) App no 126/05 (ECtHR, 22 May 2012).

[12] Ibid., para 108.

[13] Guardian, ‘UK may be forced to give prisoners the vote in time for May elections’, retrieved 20/3/15 <;

[14] Alexander Horne and Isobel White, ‘Prisoners’ Voting Rights’ House of Commons Library, SN/PC/01764, pp13-17, retrieved 18/3/15 <>

[15] HC Deb 10 February 2011 c584.

[16] The Voting Eligibility (Prisoners) Draft Bill, Cm 8499, November 2012.

[17] Decision of the Committee of Ministers, 1157th Meeting (DH), 4-6 December 2012.

[18] Draft Voting Eligibility (Prisoners) Bill, Session 2013–14, 18 December 2013 (HL Paper 103; HC 924) para 113.

[19] See for example the case of Othman (Abu Qatada) v United Kingdom ECHR 2012 dealing with the deportation of suspected terrorists. See also the case of Vinter and Others v United Kingdom dealing with Article 3 and prisoners’ right to hope.

[20] Human Rights Act 1998, section 4.

[21] Hirst v United Kingdom (No.2), Joint Dissenting Opinion of Judges Wildhaber, Costa, Lorenzen, Kovler and Jebens, para 6.

[22] HC Deb 10 February 2011, c493.

[23] George Letsas, ‘ In defence of the European Court of Human Rights’ retrieved 19/3/15 <>

[24] Protecting human rights in the UK: The Conservatives Proposals for changing Britain’s human rights laws, retrieved 20/3/15 <>

[25] Labour List, ‘Miliband makes stirring defence of Human Rights Act’ 10 December 2014, retrieved 17/3/15 <>

[26] HC Deb 10 February 2011 c584.


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Modern Slavery Bill: Cleaning up the mess of the UK government’s restrictive immigration regime for migrant domestic workers

A draft Modern Slavery Bill is currently going through the UK Houses of Parliament. One of the proposed provisions to be added to the Bill relates to the immigration regime for migrant domestic workers entering the UK with their foreign employers. This proposal is a result of the continual opposition raised by NGOs and academics to the current visa regime on the grounds that it excessively restricts domestic workers and exposes them to exploitation. This post examines the effects of this immigration regime, as well as the impact that a clause contained in the Bill would have on the situation of migrant domestic workers.

In April 2012, the UK passed a new immigration regime for domestic workers. Under the current visa, domestic workers, excluding those who had already been granted a visa prior to the 2012 immigration changes, can only enter the UK if accompanied by their overseas employer or the employer’s family. Workers are required to leave the UK when their employer leaves, and at most six months after their arrival. In contrast to the previous immigration regime introduced in 1998, the new rules prevent domestic workers from changing employers while in the UK.[1]

Despite the opposition raised against the new immigration regime, the government maintains that this change is necessary to ‘(…) ensure that Britain continues to attract the brightest and the best workers who will make a strong contribution to…[the] economy and society’.[2] Ironically, one of the stated intended effects of this visa has been the protection of workers from exploitation.[3] Nevertheless, both logic and an examination of reports on the situation of domestic workers contradict such an assertion and indicate that the current visa promotes an environment of exploitation. As domestic workers are not allowed to change employers, any attempt to leave and change employers will result in the worker becoming undocumented and exposed to the risk of detention and deportation. Hence, this regime ‘ties’ workers to a named employer.

While such a provision may prove inconsequential for domestic workers who enjoy good employment relationships where their rights are upheld and in which they are able to uphold their bargaining power, this proves problematic when one considers situations of exploitative employers. In such cases, this provision exacerbates the already vulnerable position in which migrant domestic workers find themselves, due to factors such as their hidden working environment and the atypical, often paternalistic, relationship created between them and their employers. This visa regime enables fears of arrest and deportation to emerge and hinders the workers’ ability to flee and report an abusive situation. Accordingly, if workers are exposed to labour and other violations, including conditions amounting to forced labour, servitude or slavery, they often stay and endure the abuse, in order to retain their legal status. If workers do choose to leave, then the risks of exploitation are heightened, as employers often exploit their undocumented, and thus precarious, status as an excuse for not respecting any of their labour rights.

Importantly, the provision of ‘tying’ the worker to a named employer can potentially give the latter a false sense of ownership over the domestic worker. Conscious of the powerful imbalance, employers often create unfavourable working conditions, including derisory wages, no days off, no freedom to leave the premises, and excessive working hours.[4] Therefore, such a provision can not only trap workers into a continuum of exploitation in the case of already exploitative employment relationships, but it may also facilitate employers’ failings to uphold the workers’ labour protections due to the latter’s lack of bargaining power.

The risks affiliated with this visa regime have been confirmed in Kalayaan’s 2014 report.[5] The report found that there were twice as many cases of physical abuse under the current visa, in comparison to those under the 1998 visa that allowed domestic workers to change employers (16% and 8%). Furthermore, while 43% of the workers under the old visa reported never being allowed to leave the house unaccompanied, under the current visa, that number was 71%. As to working hours, 53% of the workers under the current visa reported working more than 16 hours a day compared to 32% of those previously, and 60% of those on the tied visa reported being paid less than £50 a week, while previously the number was 36%.[6]

The effects of this visa are in clear contradiction with the principles and objectives enshrined in the ILO Convention on Decent Work for Domestic Workers.[7] This ground-breaking instrument attempts to eliminate the differential treatment evidenced in a great number of countries towards domestic workers, where this form of employment is placed in the informal economy and not protected by national labour laws. It thus extends provisions such as health and safety,[8] working hours[9] and payments[10] to domestic workers. Importantly, it obliges States to take measures to eliminate all forms of forced and compulsory labour[11] and to ensure that domestic workers have effective access to courts and tribunals.[12] Despite the importance of this instrument, the UK chose to abstain from voting in June 2011. This failing was exacerbated when the government introduced the current immigration regime for domestic workers. Not only has the UK refused to adopt an international instrument that would ensure and enhance the protections available to domestic workers but, through the new visa regime, made it almost impossible, due to the imbalance of power created, for the rights enshrined in the ILO Convention to be respected.

This restricted immigration regime can lead to situations more hazardous than labour law violations, amounting to forced labour, servitude or slavery. As the Joint Committee on the Draft Modern Slavery Bill has noted, these ‘(…) policy changes have unintentionally strengthened the hand of the slave master against the victim of slavery.’[13] These apprehensions, led to the proposal of adding a clause in the Modern Slavery Bill, addressing the immigration regime for domestic workers. The proposed clause aims at reinstating the right of domestic workers to change employers, as well as to renew their visa for a period of up to 12 months.[14] This clause partly reflects the immigration regime applicable to domestic workers prior to the 2012 changes,[15] described by the UN Human Rights Council as best practice.[16]

The fact that a proposal has been made for such a clause to be addressed under the Bill demonstrates the gravity of the situation. Nevertheless, at both the Committee and Report Stage of the HC, this clause was rejected. Frustratingly, at the Committee Stage, the vote for this clause resulted in a tie, and it was only the Chair’s casting vote that led to the clause’s withdrawal.[17] While the tie and submissions in favour of this clause gave hope of reconsideration at the House of Lords’ reading of the Bill, the clause was withdrawn at the Committee stage.[18] The Lords stated that this issue will be reconsidered at the Report Stage, thus it remains to be seen whether any positive steps will be taken to remove domestic workers from this vulnerable position.

Including such a clause in the Bill will undoubtedly have a positive impact both in principle and in practice. The mere acknowledgment that a restrictive immigration regime may generate conditions of exploitation amounting to, what is referred to in the Bill, as ‘modern slavery’ questions entrenched views that human trafficking, forced labour, servitude and slavery are practices relating only to undocumented individuals, and not economic migrants arriving under legal immigration routes. Importantly it will pass the message, posited by the Immigration Law Practitioners’ Association that ‘[t]he way to protect people against exploitation is to give them more choices, not fewer.’[19] Specifically, a State must not add to the already vulnerable position domestic workers find themselves in, through restrictive visa regimes. On the contrary, States should equip workers with rights and the freedom to seek better working conditions and to be protected from forced labour, servitude and slavery.

On a practical level, such a clause will revert the situation of migrant domestic workers to that prior to the 2012 immigration changes, allowing them once again to change employers while in the UK. The importance of this element cannot be overstated. Removing the dependency of workers for their legal status on employers could give them their voice back to speak up when their labour rights are being violated, as well as the courage to leave when being exploited. While it is accepted that this change will not eliminate all instances of exploitation, such a clause will at a minimum eliminate the institutionalisation of the abuse and exploitation occurring currently.[20]

While the inclusion of such a clause is vital, one must remember that these immigration rules need not be changed through the protracted process of the passage of a Bill. The government can reinstate the old regime almost automatically by laying the proposed changes before Parliament.[21] In fact, working concurrently on reversing the immigration regime independently to the Modern Slavery Bill is essential in order to demonstrate that abuse and exploitation that may not reach the level of forced labour, servitude or slavery, will not be tolerated.

It remains to be seen what will happen in the remaining stages of the passage of the Modern Slavery Bill. One can however hope that even if the clause on migrant domestic workers is rejected by both Houses, the calls to reinstate the old immigration regime will persuade the government, that the time has now come to amend a regime that facilitates and enhances exploitation, allowing the UK once again to declare itself a proponent of human rights.

[1] M. Gower, ‘Immigration: migrant domestic workers’, House of Commons Library, Home Affairs Section, SN/HA/4786, 20 March 2012, p.7

[2] Home Office, ‘Impact Assessment Changes to Tier 5 of the Points Based System and Overseas Domestic Worker routes of entry’, IAHO0053, 15 March 2012, pp. 29-30, p.7 retrieved 29/12/14 <

[3] Ibid.

[4] Human Rights Watch, As If I Am Not Human: Abuses Against Asian Domestic Workers in Saudi Arabia (U.S.A. 2008) pp. 64-65

[5] Kalayaan is a UK-based NGO working to provide practical advice and support to migrant domestic workers in the UK.

[6] Kalayaan, ‘Still enslaved: The migrant domestic workers who are trapped by the immigration rules’ April 2014, retrieved 5/1/15 <;

[7] ILO C189- Domestic Workers Convention, 2011 (N. 189), Convention concerning decent work for domestic workers, 100th ILC Session, Geneva, 16 Jun 2011, (Entry into force: 05 Sep 2013)

[8] Ibid. Article 13

[9] Ibid. Article 10

[10] Ibid. Article 11, 12

[11] Ibid. Article 3

[12] Ibid. Article 16

[13] Draft Modern Slavery Bill Joint Committee, Draft Modern Slavery Bill, 2013-2014, HL 166, HC 1019, para 5

[14] Modern Slavery Bill Deb 14 October 2014, col. 498

[15] Immigration Rules, Part 5, HC 395 of 1993-4 as amended by CM 5597 of 22 August 2002

[16] UN Human Rights Council, Report of the Special Rapporteur on the human rights of migrants, Addendum: Mission to the United Kingdom of Great Britain and Northern Ireland, 16 March 2010, para 60, U.N Doc A/HRC/14/30/Add. 3

[17] Modern Slavery Bill Deb 14 October 2014, col.503; HC Deb 4 November 2014, Vol. 587 col. 780

[18] Modern Slavery Bill HL Deb 10 December 2014, col. 1872

[19] Immigration Law Practitioners’ Association, ‘Briefing for Modern Slavery Bill, House of Lords’ Committee Stage, for Amendment 94 on overseas domestic workers’, 7 December 2014

[20] Report of the Joint Committee on the Draft Modern Slavery Bill, Session 2013-2014, HL Paper 166, HC 1019, para 225

[21] See for example: Written Statement to Parliament, ‘Immigration (employment-related settlement, overseas domestic workers, Tier 5 of the points-based system and visitors)’ 29 February 2012, retrieved 23/11/14 <>

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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> 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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