Ending impunity for the violation of migrant worker’s rights: Chowdury v Greece

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Monday, May 15, 2017

On 30 March 2017, the European Court of Human Rights handed down a judgment that condemned Greece for non-compliance with its positive obligations stemming from Article 4(2) of the European Convention of Human Rights - no-one shall be required to perform forced or compulsory labour. The Chamber judgment in Chowdury v Greece examines the forced labour of Bangladeshi migrant workers, who were working in the strawberry fields of Manolada.

Well-known for its cultivation of strawberries, the region relies upon migrant labour predominantly sourced from non-EU nationals in a precarious irregular migration situation. In 2008, following an exposé by the media, the exploitative working conditions of the workers in this region came to light. At this time, very limited action was taken by the State to rectify and secure the non-exploitation of the workers known to be at risk of exploitative working conditions.

The case is of significance as it emphasises the interconnectivity between national legal frameworks and policy measures that seek to prevent labour exploitation and the protection of migrant worker’s rights. In particular, the importance of identifying and recognising potential victims of labour exploitation as such, and not as “illegal workers,” as well as securing their access to justice.

The case nevertheless highlights on-going deficiencies in the prevention of exploitation of migrant workers (including those in an irregular migrant situation) and in particular the non-implementation of legal obligations that stem from EU law.

It will be suggested that States’ positive obligations arising out of Article 4 can only be fulfilled by taking into account a holistic approach that focuses on the rights of migrant workers rather than the criminalisation of migration. This approach requires an assessment of analogous rights - and their added value - under EU law, which the Court neglected to address in its judgment.

The facts

The present case considers the working conditions of 42 Bangladeshi migrant workers, recruited to work between October 2012 and March 2013. The applicants were promised 22 Euros for seven hours work, with the option of 3 Euros per hour for overtime minus 3 Euros a day for food. In reality, the working conditions amounted to 12 hour days under the constant supervision of armed guards, who told them that they would be paid once the work was finished.

After several months without receiving pay, the workers, on three occasions (February 2013, March 2013, April 2013) attempted to confront their employers by taking strike action to demand for the payment of their outstanding wages.

On 17 March 2013, new seasonal migrant workers were recruited. The existing workers (approximately 100-150) approached their employers to, once again, demand payment of wages.  One of the armed guards opened fire, injuring 30 persons (21 of the applicants in the present case). The incident was brought to the attention of the police, who interviewed the hospitalised workers.

Impunity for violation of worker’s rights: The Greek response

Following the incident on 17 March 2013, a police investigation led to the prosecution of the two employers and two of the armed guards for attempted murder and trafficking in human beings. In July 2014, the Court of Assize acquitted all defendants of trafficking in human beings. The employer and the armed guard and one employer were convicted of grievous bodily harm and the unlawful use of firearms. However, their prison sentences of 14 years and seven months and eight years and seven months respectively were commuted to a financial penalty amounting to 5 Euros for every day of incarceration. As compensation to the 35 workers, they were ordered to pay 1,500 Euros (43 Euros per person). An appeal in October 2014 to the Cour of Cassation was rejected and the original judgment was rendered “irrevocable”.

Identifying and investigating labour exploitation: Findings of the European Court of Human Rights in Chowdury

The examination by the Court of the domestic handling of the present case reinforces the positive obligations on States to correctly identify and investigate working conditions that potentially amount to labour exploitation. In particular, the Court reinforces the need for national legal frameworks and policy measures that seek to prevent labour exploitation to recognise the interconnectivity with the protection of migrant worker’s rights. Equally, States must identify and recognise potential victims of labour exploitation as such, and not as “illegal workers.” Most notably, the Court found the following:

·         Procedural obligation to investigate

Two days before the incident on 17 March 2013, the workers attempted to raise concerns with the local police complaining of the non-payment of wages - an indicator of forced labour. However, no further action was taken. As first responders, and in light of the factual indicators of exploitative working conditions, the police should have undertaken an investigation (C.N. v. United Kingdom, para. 69 & J. and Others v. Austria).

·         Prior consent is not sufficient to exclude forced labour

The Greek authorities considered that the workers had consented to the working conditions, as they had been informed of the conditions at the point of recruitment. In particular, the Greek authorities focused on the comparability of the salary to the region and similar job opportunities in the same sector. However, the Court held that initial consent is invalidated where an employer abuses or profits from the vulnerability of the workers and any examination of work being done against their will should be done on a case by case basis (para. 96). In the present case, the Court found that the employer had profited from the irregular situation of the migrant workers, which was exacerbated by their lack of financial means and the risk of detention or deportation should they contact the authorities (para. 97).

·         Lack of alternative: physical and mental restriction of movement

The Greek authorities considered that the workers did not have their freedom of movement sufficiently restricted to amount to forced labour. Indeed, the fact that in their free time, the workers were able to move around the region, go shopping and play cricket, meant that they were not forced to work against their will and could have left the situation at any moment.

However, the Court held that restriction of movement is not a condition sina que non for classifying forced labour, nevertheless the Court did take into account the threats from the employers should they refuse to cooperate: the employers told the workers that they would not be paid or be killed if they did not continue to work for him (para.  98). In addition, the Court took into account the fact that the workers felt obliged to continue to work, knowing that if they stopped working then they would not receive the wages owed to them, especially considering that they had no other means of subsistence (paras. 95 & 97).

Taking into account i) the lack of understanding and awareness of the scope of forced labour and relevant indicators; and ii) the non-compliance with established positive obligations, the Court found a violation of Article 4(2) prohibition of forced labour, amounting to human trafficking for labour exploitation. In particular, the Court held that the State had failed to meet its procedural obligations under Article 4 i) to prevent the situation, ii) to protect the victims, iii) to conduct an effective investigation into the offences committed and iv) to punish those responsible.

Securing access to justice for exploited migrant workers under EU Law

Whilst the Court explicitly recognised the need for States to effectively implement their procedural obligations, the judgement fails to acknowledge the added value of EU law when it comes to additional protection of migrant workers rights: especially those who have been exploited and require assistance in securing access to justice.

·         Support and assistance: Residence permits

The Employers Sanctions Directive 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals requires that Member States should be free to grant residence permits of limited duration, linked to the length of the relevant national proceedings, to third-country nationals who have been subjected to particularly exploitative working conditions […] and who cooperate in criminal proceedings against the employer (recital 27).  

In April 2013, the workers who were seriously injured were granted residence permits in recognition of their status as victims of human trafficking (para. 11). In May 2013, an additional 120 workers came forward to the police, stating that they had been present on the 17 April 2013, and that they should be considered as victims of human trafficking. In August 2013, the Greek authorities rejected the request for recognition as victims of human trafficking. One of the reasons for this rejection was that they believed that many of the complainants were only coming forward because they had discovered that they could receive residence permits if they were to recognised as victims of human trafficking (para. 14).

Thus the Greek authorities only considered the possibility of granting residence permits to human trafficking victims, and failed to take into account the provision in the Employers Sanction Directive that provides for the provision of residence permits to those third-country nationals who cooperate in proceedings against an employer who subjected them to particularly exploitative working conditions.

·         State obligation to compensate for non-payment of wages

Article 6 of the Employers Sanctions Directive (2009) obliges Member States to ensure that where irregular migrant workers are found to be working in “particularly exploitative working conditions” then they should be provided with any outstanding remuneration through mechanisms implemented by the State that enable the worker to receive any back payment of remuneration.

The Greek law does not oblige employers to pay unpaid wages to irregular migrant workers (para.81). Instead, the judgment by the Court of Assize ordered 453 Euros compensation for each worker, instead of the wages equating to six months work. 

An innovative development of the Court’s judgment is the award of compensation to all of the applicants, under Article 41. The Greek government must pay damages for the amount of 16,000 Euros to all the applicants who had participated in domestic proceedings before the Court of Assize and 12,000 Euros to the remaining applicants. According to the Court this was for material and moral loss, however the amount actually given only related to the latter rather than the former which was requested separately and specifically for the unpaid wages (between 400 and 2,800 Euros).  Under EU law, however and as noted above, Greece, in accordance with Article 6 of the Employer’s Sanctions Directive,  is also under an obligation to pay the outstanding wages of the applicants.

Deficiencies in preventing the exploitation of migrant workers: securing the worker’s rights of migrant workers

The Chowdury case highlights the on-going deficiencies in the prevention of exploitation of migrant workers (including those in an irregular migrant situation). For example, the joint third party intervention of PICUM and the Aire Centre emphasised the role of EU law in securing fair and just working conditions, social protection and health and safety for all workers, whether undocumented or not.  Unfortunately, as discussed above, the Court failed to explicitly recognise the added value of EU law and the strengthening of migrant workers’ rights when securing access to justice.

Where economic sectors are known to be highly reliant on migrant labour, and where, as in the present case, the exploitation of irregular migrant workers is rife, states must take steps to ensure that the rights of migrant workers are upheld. Increased labour inspection and regulation, improved channels for regular migration status and better implementation of the provisions pertaining to the employment of seasonal workers are of crucial important in this regard.  

Notwithstanding the application of the European Convention of Human Rights to all persons in the jurisdiction of the Member States, including irregular migrants, a holistic approach focusing on the fundamental rights of migrant workers rather than the criminalisation of migration, may work towards the fulfilment of the positive obligations on States under Article 4. As part of this approach Member States must duly implement analogous EU law rights in order to safeguard migrant workers protection.

Implications on the employment of undocumented migrant workers in Europe

The judgment is an extremely positive development in terms of the recognition of the rights of migrant workers, and in particular, the vulnerability caused by a precarious administrative situation that increases the risk of labour exploitation.

The Court reaffirms that States must be held accountable for national law and policy measures that engender impunity and a tolerance for the exploitation of irregular migrant workers. However, improved and more effective prevention of labour exploitation can further be achieved by implementing and engaging with the EU acquis securing fair and just working conditions for all migrant workers.


Amy Weatherburn is a PhD Researcher for the Fundamental Rights and Constitutionalism Research Group, Vrije Universiteit Brussels and INTERVICT Institute of Tilburg Law School

(This journal entry is an expression of the authors' own views, and not those of EDAL or ECRE)

Trafficking in human beings
Effective access to procedures
Procedural guarantees