Trafficking as an ECHR Violation – A Crucial European Human Rights Law Development
On Friday, Jurist reported that the European Court of Human Rights has found trafficking to be a violation of Article 4. The Court’s decision in Rantsev v. Cyprus and Russia is to be greatly welcomed given the prevalence of trafficking in Europe and the importance that trafficking be regarded first and foremost as a human rights issue – not simply a criminal justice matter. (The issue of trafficking in Ireland and the shortcomings of the Irish legal framework in terms of addressing the problems faced by many victims of trafficking has been previously addressed on this blog).
The applicant in Rantsev, Mikhaylovich Rantsev, a Russian national, brought a complaint in relation to the trafficking, and the circumstances surrounding the death, of his daughter in Cyprus. He alleged violations of Articles 2, 3, 4, 5 and 8 of the Convention resulting from the lack of sufficient investigation into the circumstances of the death of his daughter, the lack of adequate protection of his daughter by the Cypriot police while she was still alive and the failure of the Cypriot authorities to take steps to punish those responsible for his daughter’s death and ill-treatment. He also complained under Articles 2 and 4 about the failure of the Russian authorities to investigate his daughter’s alleged trafficking and subsequent death and to take steps to protect her from the risk of trafficking. Finally, he complained under Article 6 of the Convention about the inquest proceedings and an alleged lack of access to court in Cyprus.
The Court held only the complaints under Articles 2, 3, 4 and 5 to be admissible. It ultimately decided that it was not necessary to consider separately the applicant’s complaint under Article 3 of the Convention. The Court ruled that Cyprus had violated Article 2 of the Convention due to its failure to conduct an effective investigation into Ms Rantseva’s death. The Court also found Cyprus to be in contravention of Article 5 of the Convention.
The most interesting element of the decision, however, is the Court’s findings with regard to Article 4 ECHR. According to the Court, Cyprus had violated Article 4 due to its failure to afford Ms Rantseva practical and effective protection against trafficking and exploitation in general and by not taking the necessary specific measures to protect her. While the Court held that there had been no breach by Russia of its positive obligations under Article 4 of the Convention to take operational measures to protect Ms Rantseva against trafficking, it did find Russia to be in contravention of the procedural obligations to investigate the alleged trafficking imposed on it by that Article.
Thusfar, Article 4 ECHR has been the subject of relatively limited attention from the Court, with the most significant recent decision being that of Siliadin v France . This case also involved a trafficking victim, albeit the victim in Siliadin was a domestic worker, while Ms Rantseva was a cabaret artiste and may have been subject to sexual exploitation. Siliadin was the subject of some criticism due to its relatively narrow construal of ‘slavery’ under Article 4. As highlighted in a previous post on this blog, in that case, the Court held that ‘slavery’ under the Convention required that the victim be subject to a ‘genuine right of legal ownership over her, thus reducing her to the status of an “object”’, rather than simply a deprivation of personal autonomy’. As we will see below, this approach was also reflected to some degree in the Rantsev decision.
In its consideration of Article 4, the Court stated that
The absence of an express reference to trafficking in the Convention is unsurprising. The Convention was inspired by the Universal Declaration of Human Rights, proclaimed by the General Assembly of the United Nations in 1948, which itself made no express mention of trafficking. In its Article 4, the Declaration prohibited “slavery and the slave trade in all their forms”. However, in assessing the scope of Article 4 of the Convention, sight should not be lost of the Convention’s special features or of the fact that it is a living instrument which must be interpreted in the light of present-day conditions. The increasingly high standards required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably require greater firmness in assessing breaches of the fundamental values of democratic societies … In light of the proliferation of both trafficking itself and of measures taken to combat it, the Court considers it appropriate in the present case to examine the extent to which trafficking itself may be considered to run counter to the spirit and purpose of Article 4 of the Convention such as to fall within the scope of the guarantees offered by that Article without the need to assess which of the three types of proscribed conduct are engaged by the particular treatment in the case in question.
With regard to the question of whether trafficking qualified as ‘slavery’, the Court stated that:
276. In Siliadin, considering the scope of “slavery” under Article 4, the Court referred to the classic definition of slavery contained in the 1926 Slavery Convention, which required the exercise of a genuine right of ownership and reduction of the status of the individual concerned to an “object” (Siliadin, cited above, § 122). With regard to the concept of “servitude”, the Court has held that what is prohibited is a “particularly serious form of denial of freedom” (see Van Droogenbroeck v. Belgium, Commission’s report of 9 July 1980, §§ 78-80, Series B no. 44). The concept of “servitude” entails an obligation, under coercion, to provide one’s services, and is linked with the concept of “slavery” (see Seguin v. France (dec.), no. 42400/98, 7 March 2000; and Siliadin, cited above, § 124). For “forced or compulsory labour” to arise, the Court has held that there must be some physical or mental constraint, as well as some overriding of the person’s will (Van der Mussele v. Belgium, 23 November 1983, § 34, Series A no. 70; Siliadin, cited above, § 117).
280. The Court observes that the International Criminal Tribunal for the Former Yugoslavia concluded that the traditional concept of “slavery” has evolved to encompass various contemporary forms of slavery based on the exercise of any or all of the powers attaching to the right of ownership (see paragraph 142 above). In assessing whether a situation amounts to a contemporary form of slavery, the Tribunal held that relevant factors included whether there was control of a person’s movement or physical environment, whether there was an element of psychological control, whether measures were taken to prevent or deter escape and whether there was control of sexuality and forced labour (see paragraph 143 above).
281. The Court considers that trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership. It treats human beings as commodities to be bought and sold and put to forced labour, often for little or no payment, usually in the sex industry but also elsewhere (see paragraphs 101 and 161 above). It implies close surveillance of the activities of victims, whose movements are often circumscribed (see paragraphs 85 and 101 above). It involves the use of violence and threats against victims, who live and work under poor conditions (see paragraphs 85, 87 to 88 and 101 above) …
The Court fell short, however, of defining trafficking as either ‘slavery’, ‘servitude’ or ‘forced labour’ stating that
There can be no doubt that trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention. In view of its obligation to interpret the Convention in light of present-day conditions, the Court considers it unnecessary to identify whether the treatment about which the applicant complains constitutes “slavery”, “servitude” or “forced and compulsory labour”. Instead, the Court concludes that trafficking itself, within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention, falls within the scope of Article 4 of the Convention.
One might be tempted to regard the Court’s stance in Rantsev as an acknowledgement of, and attempt to accommodate the criticism generated by its failure to classify the treatment experienced by the applicant in Siliadin as ‘slavery’.
As in Siliadin, the Court in focussed extensively on the positive obligations imposed by Article 4:
285. In its Siliadin judgment, the Court confirmed that Article 4 entailed a specific positive obligation on member States to penalise and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour (cited above, §§ 89 and 112). In order to comply with this obligation, member States are required to put in place a legislative and administrative framework to prohibit and punish trafficking. The Court observes that the Palermo Protocol and the Anti-Trafficking Convention refer to the need for a comprehensive approach to combat trafficking which includes measures to prevent trafficking and to protect victims, in addition to measures to punish traffickers (see paragraphs 149 and 163 above). It is clear from the provisions of these two instruments that the Contracting States, including almost all of the member States of the Council of Europe, have formed the view that only a combination of measures addressing all three aspects can be effective in the fight against trafficking (see also the submissions of Interights and the AIRE Centre at paragraphs 267 and 271 above). Accordingly, the duty to penalise and prosecute trafficking is only one aspect of member States’ general undertaking to combat trafficking. The extent of the positive obligations arising under Article 4 must be considered within this broader context.
286. As with Articles 2 and 3 of the Convention, Article 4 may, in certain circumstances, require a State to take operational measures to protect victims, or potential victims, of trafficking (see, mutatis mutandis, Osman, cited above, § 115; and Mahmut Kaya v. Turkey, no. 22535/93, § 115, ECHR 2000-III). In order for a positive obligation to take operational measures to arise in the circumstances of a particular case, it must be demonstrated that 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 was at real and immediate risk of being, trafficked or exploited within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention. In the case of an answer in the affirmative, there 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 (see, mutatis mutandis, Osman, cited above, §§116 to 117; and Mahmut Kaya, cited above, §§ 115 to 116).
287. Bearing in mind the difficulties involved in policing modern societies and the operational choices which must be made in terms of priorities and resources, the obligation to take operational measures must, however, be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see, mutatis mutandis, Osman, cited above, § 116). It is relevant to the consideration of the proportionality of any positive obligation arising in the present case that the Palermo Protocol, signed by both Cyprus and the Russian Federation in 2000, requires States to endeavour to provide for the physical safety of victims of trafficking while in their territories and to establish comprehensive policies and programmes to prevent and combat trafficking (see paragraphs 153 to 154 above). States are also required to provide relevant training for law enforcement and immigration officials (see paragraph 155 above).
The Court also emphasised that Article 4 also entails a procedural obligation to investigate situations of potential trafficking – both in states of origin and host states:
In addition to the obligation to conduct a domestic investigation into events occurring on their own territories, member States are also subject to a duty in cross-border trafficking cases to cooperate effectively with the relevant authorities of other States concerned in the investigation of events which occurred outside their territories.
Ms Ranseva was failed grievously by Cyprus and Russia both during her lifetime and afterwards. One hopes that this ECtHR judgment will improve the likelihood that current and future trafficking victims will be accorded fuller justice.
A copy of a press release from the European Court of Human Rights is available here.
An analysis of this decision by HRinI contributor Fiona de Londras, is also available on the IntLawGrrls blog.