Trafficking & Labour [ECHR]

ECHR & Convention

The  Council of Europe Convention on action against trafficking in human beings adopted in 2005 has been ratified by more than 40 countries. The state must implement measures against human trafficking.There is a duty for states to investigate human trafficking and to cooperate internationally for such purposes. This is reinforced by the modern Convention.

In Rantsev v. Cyprus and Russia, it was acknowledged that trafficking may, in principle, run counter to the spirit and purpose of Article 4 and fall within its guarantees. The  court held that the state should provide proper safeguards against human trafficking and, in particular proper relevant training for immigration and police personnel.

The state authorities were aware or ought to have been aware of circumstances giving rise to a credible suspicion that an identified individual had been or is at a real and immediate risk of being trafficked or exploited within the meaning of the . . . anti-trafficking Convention.

In the case of an answer in the affirmative, it will be a violation of Article 4 of the Convention, where the authorities fail to take appropriate measures within the scope of their powers to remove the individual from that situation or risk. The burden on the state should not be disproportionate.

State’s Response Domestic Service

J. and Others v. Austria  a 2017 case concerned the Austrian authorities’ investigation into an allegation of human trafficking. The applicants, two Filipino nationals, who had gone to work as maids or au pairs the United Arab Emirates, alleged that their employers had taken their passports away from them and exploited them. The Court, finding that the Austrian authorities had complied with their duty to protect the applicants as (potential) victims of human trafficking, held that there had been no violation of Article 4 (prohibition of forced labour) and no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention.

In Chowdury and Others v. Greece, the applicants  42 Bangladeshi nationals – were recruited in Athens and other parts of Greece between the end of 2012 and early 2013, without a Greek work permit, to work at the main strawberry farm in Manolada. Their employers failed to pay the applicants’ wages and obliged them to work in difficult physical conditions under the supervision of armed guards.

The Court held that there had been a violation of Article 4 of the Convention, finding that the applicants had not received effective  protection from the Greek State.  The Court also found that the State had failed in its obligations to prevent the situation of human trafficking, to protect the victims, to conduct an effective investigation into the offences committed and to punish those responsible for the trafficking.

State’s Response Prostituion

T.I. and Others v. Greece 2019 In this case, three Russian nationals claimed that they had been victims of human trafficking. They alleged in particular that they had been forced to work as prostitutes in Greece and complained that the Greek authorities had failed to fulfil their obligations to criminalise and prosecute acts relating to human trafficking. They further complained of inadequacies and shortcomings in the investigation and the judicial proceedings.

The Court held that there had been a violation of Article 4 (prohibition of forced labour) of the Convention, finding that the legal framework governing the proceedings had not been effective and sufficient either to punish the traffickers or to ensure effective prevention of human trafficking. It noted in particular that the competent authorities had not dealt with the case with the level of diligence required and that the applicants had not been involved in the investigation to the extent required under the procedural limb of Article 4.

Lack of Procedures I

S.M. v. Croatia 2020 (Grand Chamber)  concerned a Croatian woman’s complaint of human trafficking and forced prostitution. The applicant complained of an inadequate official procedural response to her allegations. The Court held that there had been a violation of Article 4 (prohibition of forced labour) of the Convention on account of the shortcomings in the Croatian authorities’ investigation into the applicant’s allegation of forced prostitution.

The Court also clarified that the notion of “forced or compulsory labour” under Article 4 of the Convention aimed to protect against instances of serious exploitation, such as forced prostitution, irrespective of whether, in the particular circumstances of a case, they were related to the specific human trafficking context. It found that Article 4 could be applied in the applicant’s case as certain characteristics of trafficking and forced prostitution had arguably been present, such as abuse of power over a vulnerable individual, coercion, deception and harbouring.

Zoletić and Others v. AzerbaijanThe applicants, 33 nationals of Bosnia and Herzegovina, had been recruited from Bosnia and Herzegovina as temporary construction workers in Azerbaijan. They complained in particular of having been subjected to trafficking and forced or compulsory labour in Azerbaijan while working at construction projects.
The Court held that there had been a violation of Article 4 of the Convention under its procedural limb, finding that the Azerbaijan authorities had failed to comply with their procedural obligation to institute and conduct an effective investigation of the applicants’ claims concerning the alleged forced labour and human trafficking.

Lack of Procedures II

V.C.L. and A.N. v. the United Kingdom 2021 This case concerned two Vietnamese men who, while still minors, were charged with – and subsequently pleaded guilty to – drug-related offences after they were discovered working as gardeners in cannabis factories in the United Kingdom. Following their convictions they were recognised as victims of trafficking by the designated Competent Authority responsible for making decisions on whether a person has been trafficked for the purpose of exploitation: this Authority identifies potential victims of modern slavery and ensures they receive the appropriate support.

The Court held that there had been a violation of Article 4 (prohibition of forced labour) of the Convention, finding that the domestic authorities had failed to take adequate operational measures to protect the applicants, both of whom had been potential victims of trafficking. It noted in particular that despite the applicants being discovered in circumstances which indicated that they had been victims of trafficking, they had been charged with a criminal offence to which they pleaded guilty on the advice of their legal representatives, without their case first being assessed by the Competent Authority.

Refugees & Residence

In L.R. v. the United Kingdom the applicant claimed that she had been trafficked to the United Kingdom from Italy by an Albanian man who forced her into prostitution in a night club collecting all the money which that brought. She escaped and started living in an undisclosed shelter. She claimed that removing her from the United Kingdom to Albania would expose her to a risk of being treated in breach of, among others, Article 4 (prohibition of slavery and forced labour) of the Convention.

The Court struck the application out of its list of cases, in accordance with Article 37 (striking out applications) of the Convention, as it found that the applicant and her daughter had been granted refugee status in the United Kingdom and that there was no longer any risk that they would be removed to Albania. The Government had also undertaken to pay to the applicant a sum for the legal costs incurred by her.