Guide to the Court’s Judgment in Rantsev v Cyprus and Russia (Application No. 25965/04)
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The trafficking of persons has become an increasing phenomenon in the past decade and as borders within Europe continue to fade, incidents of trafficking are on the increase. The Council of Europe Convention on Action against Trafficking in Human Beings (‘Trafficking Convention’) is the first European document to provide detailed provisions on the assistance, protection and support to be provided to victims of trafficking in addition to the obligations of Member States to carry out effective criminal investigations and to take steps to combat trafficking. The Trafficking Convention was opened for signature on 16 May 2005 and came into force on 1 February 2008.
This Guide sets out important jurisprudence of the European Court of Human Rights in trafficking cases and in particular the Court’s view on the interplay between Article 4 ECHR and trafficking.
The Judgment in Siliadin v France (Application no. 73316/01)
The ECtHR’s first judgment to consider the Trafficking Convention and trafficking generally within the context of Article 4 of the European Convention on Human Rights was in the case Siliadin v France (Application no. 73316/01) [1]. In this case the Court carried out an analysis of the various components of Article 4 and the standards which have to be met for there to be a violation of these.
Article 4 provides:
1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
In the Siliadin case the Applicant was a fifteen year old girl who was brought from Togo to France by means of deceit for purposes of labour exploitation. The Court looked exclusively at France’s failure to put in place adequate criminal-law provisions to prevent and effectively punish the perpretrators of those acts; the judgment however falls short of addressing the positive obligations of States in relation to the protection of victims of trafficking. In assessing whether there had been a violation of Article 4 of the Convention, the Court made fine distinctions between “slavery”, “servitude” and “forced or compulsory labour” (all prohibited by Article 4) and held that an assessment needed to be made to ascertain whether the situation of the trafficked person fell into one or more of these three distinct prohibitions.
The relevant parts of the Court’s judgment are set out below; these set out the Court’s view on the meaning of the terms slavery, servitude and forced labour and of whether the Applicant’s situation fell into any or all of these categories.
‘112. The Court reiterated that Article 4 enshrines one of the fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 4 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation…
In those circumstances, the Court considers that, in accordance with contemporary norms and trends in this field, the member States’ positive obligations under Article 4 of the Convention must be seen as requiring the penalisation and effective prosecution of any act aimed at maintaining a person in such a situation…
113. Accordingly, the Court must determine whether the applicant’s situation falls within Article 4 of the Convention…
115. In interpreting Article 4 of the European Convention, the Court has in a previous case already taken into account the ILO Conventions, which are binding on almost all of the Council of Europe’s member States, including France, and especially the 1930 Forced Labour Convention (see Van der Mussele v. Belgium, judgment of 23 November 1983, Series A no. 70, § 32).
116. It considers that there is in fact a striking similarity, which is not accidental, between paragraph 3 of Article 4 of the European Convention and paragraph 2 of Article 2 of Convention No. 29. Paragraph 1 of the last mentioned Article provides that “for the purposes” of the latter Convention, the term “forced or compulsory labour” shall mean “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”.
117. It remains to be ascertained whether there was “forced or compulsory” labour. This brings to mind the idea of physical or mental constraint. What there has to be is work “exacted ... under the menace of any penalty” and also performed against the will of the person concerned, that is work for which he “has not offered himself voluntarily”…
118. The Court notes that, in the instant case, although the applicant was not threatened by a “penalty”, the fact remains that she was in an equivalent situation in terms of the perceived seriousness of the threat.
She was an adolescent girl in a foreign land, unlawfully present in French territory and in fear of arrest by the police. Indeed, Mr and Mrs B. nurtured that fear and led her to believe that her status would be regularised….
Accordingly, the Court considers that the first criterion was met, especially since the applicant was a minor at the relevant time, a point which the Court emphasises.
119. As to whether she performed this work of her own free will, it is clear from the facts of the case that it cannot seriously be maintained that she did. On the contrary, it is evident that she was not given any choice.120. In these circumstances, the Court considers that the applicant was, at the least, subjected to forced labour within the meaning of Article 4 of the Convention at a time when she was a minor.
121. It remains for the Court to determine whether the applicant was also held in servitude or slavery.
122. The Court notes at the outset that, according to the 1927 Slavery Convention, “slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”.
It notes that this definition corresponds to the “classic” meaning of slavery as it was practiced for centuries. Although the applicant was, in the instant case, clearly deprived of her personal autonomy, the evidence does not suggest that she was held in slavery in the proper sense, in other words that Mr and Mrs B. exercised a genuine right of legal ownership over her, thus reducing her to the status of an “object”.
123. With regard to the concept of “servitude”, it “prohibits a particularly serious form of denial of freedom”… It includes, “in addition to the obligation to provide certain services to another... the obligation on the “serf” to live on the other’s property and the impossibility of changing his status”…
124. It follows in the light of the case-law on this issue that for Convention purposes “servitude” means an obligation to provide one’s services that is imposed by the use of coercion, and is to be linked with the concept of “slavery” described above…
125. Furthermore, under the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, each of the States Parties to the Convention must take all practicable and necessary legislative and other measures to bring about the complete abolition or abandonment of the following institutions and practices:
“(d) Any institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.”
126. In addition to the fact that the applicant was required to perform forced labour, the Court notes that that this labour lasted almost fifteen hours a day, seven days per week.
Brought to France by a relative of her father’s, she had not chosen to work for Mr and Mrs B.
As a minor, she had no resources and was vulnerable and isolated, and had no means of subsistence other than in the home of Mr and Mrs B., where she shared the children’s bedroom as no other accommodation had been provided. She was entirely at Mr and Mrs B.’s mercy, since her papers had been confiscated and she had been promised that her immigration status would be regularised, which had never occurred.
127. In addition, the applicant, who was afraid of being arrested by the police, was not in any event permitted to leave the house, except to take the children to their classes and various activities. Thus, she had no freedom of movement and no free time…
129. In those circumstances, the Court concludes that the applicant, a minor at the relevant time, was held in servitude within the meaning of Article 4 of the Convention.
The Judgment in Rantsev v Cyprus and Russia (Application no. 25965/04)
On 7 January 2010 the European Court of Human Rights adopted a Judgment in the case of Rantsev v Cyprus and Russia (Application No. 25965/04). This case involved a Russian national who entered Cyprus on an artiste visa (widely known to be used by human traffickers to bring women into the country for purposes of forced prostitution in nightclubs). Ms Rantseva escaped from the club where she was working, but her “employers” found her and brought her to a police station in order to have her deported for violating the terms of her visa. She spent several hours at the police station; the police, not intending to deport her, contacted the alleged traffickers to come and pick her up, which they did. Several hours later Ms Rantseva was found dead on the pavement outside the apartment building of one of the men concerned. The applicant (Ms Rantseva’s father) complained, principally, about the failure to investigate the allegations of human trafficking and his daughter’s death, as well as the failure of the Cypriot authorities to protect his daughter.
In its judgment, the Court found violations of:
The Court’s findings in relation to the violation of Article 2 and the procedural aspect of Article 4 (2(c), above) are not surprising in the light of the failure of the authorities to carry out an adequate investigation; this follows the Court’s jurisprudence in cases such as Osman v United Kingdom (1998) and applies it by analogy to Article 4. The novel points relate to the Court’s other findings under Article 4 and Article 5. When considering the text of Article 4 and the fact that trafficking was not specifically including within that Article, the Court stated at paragraph 277 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…which itself made no express mention of trafficking…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.’
The Court went on to note (at paragraph 278) that:
‘trafficking in human beings as a global phenomenon has increased significantly in recent years…In Europe, its growth has been facilitated in part by the collapse of former Communist blocs. The conclusion of the Palermo Protocol in 2000 and the Anti-Trafficking Convention in 2005 demonstrate the increasing recognition at international level of the prevalence of trafficking and the need for measures to combat it’.
One of the most important aspects of the Rantsev Judgment is the Court’s position regarding the approach taken in Siliadin. The Court acknowledged the tri-part analysis of the Court in Siliadin but stated:
‘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.’ (Paragraph 279)
Interestingly, the Court then used jurisprudence of the ICTY in the case Prosecutor v Kunarac, Vukovic and Kovac [2], in which the Tribunal discussed the definition of enslavement as a crime against humanity, to form its own judgment and to conclude that trafficking constituted a violation of Article 4 ECHR: (paragraphs 280 – 282)
‘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…In assessing whether a situation amounts to a contemporary form of slavery, the Tribunal held that the 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…
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…It implies close surveillance of the activities of victims, whose movements are often circumscribed…It involves the use of violence and threats against victims, who live and work under poor conditions…
282. 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…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 considers 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.’ (Emphasis added)
The Court explicitly states it view that in order to meet the positive obligations under Article 4 of the Convention, it is necessary for Member States to put into place an effective provisions for the protection of victims and potential victims of trafficking in addition to criminal provisions punishing traffickers:‘284….The Court considers that the spectrum of safeguards set out in national legislation must be adequate to ensure the practical and effective protection of the rights of victims or potential victims of trafficking. Accordingly, in addition to criminal law measures to punish traffickers, Article 4 requires member States to put in place adequate measures regulating businesses often used as a cover for human trafficking. Furthermore, a State’s immigration rules must address relevant concerns relating to encouragement, facilitation or tolerance of trafficking…
285….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…The extent of the positive obligations arising under Article 4 must be considered within this broader context.
286….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…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…
287….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…States are also required to provide relevant training for law enforcement and immigration officials…
289….When a person is trafficked from one State to another, trafficking offences may occur in the State of origin, any State of transit and the State of destination. Relevant evidence and witnesses may be located in all 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.’
The Cypriot Government’s violation of Article 4 stemmed from its artiste-visa regime, which essentially legitimised human trafficking and did not provide sufficient protection to Ms Rantseva. Practitioners may query whether aspects of UK immigration law and practice are similarly deficient. The failure to take protective measures – in this case the police’s multiple failures to protect Ms Rantseva when they had the opportunity to do so – may also have its equivalent in UK immigration practice or indeed in criminal investigations and prosecution; in another AIRE Centre case the victim voluntarily cooperated with the police who then took the decision not to prosecute the alleged traffickers. This placed the victim at even greater risk than before and made it impossible for her to return to her country of origin. Paragraphs 294-298 of the Rantsev judgment add force to arguments that the UK must provide protection to individuals at risk of trafficking or reprisals upon return to their country of origin.
The most important development for victims of trafficking in the UK to come out of the Rantsev judgment relates to the legal arguments that can be made on their behalf. In finding Cyprus responsible under Article 5(1) ECHR for Ms Rantseva’s deprivation of liberty, the Court noted that “victims of trafficking often suffer severe physical and psychological consequences which render them too traumatised to present themselves as victims” (paragraph 320); in other words, the police ought to have known that Ms Rantseva was (or was at real risk of being) a trafficking victim. The same obligation can be found in Article 10 of the Council of Europe Convention on Action against Trafficking in Human Beings which the UK is a party to. When incorporating this Convention into domestic law, the UK excluded the Convention provisions on victim protection (Articles 10 to 17) and therefore relying on them in domestic courts is problematic (see In re McKerr [2004] UKHL 12, paragraphs 50-51). However, following the Rantsev judgment, it is now possible to argue that many if not all of the victim-protection provisions in the Convention are also covered by the positive obligations States owe victims (or possible victims) of human trafficking under Article 4. This would include the obligation on “competent authorities” (which include police, judges and immigration officers) to identify victims of human trafficking (Art 10), the obligation to provide material support to victims present in the UK (Art 12) and the duty to return victims to other States “with due regard for the rights, safety and dignity of that person” (Art 16(2)). For the UK, the importance of bringing trafficking explicitly within Article 4 ECHR is great as this enables victims of trafficking to pursue their claims domestically under the Human Rights Act 1998.
For further information on the AIRE Centre or the Rantsev Case please contact Saadiya Chaudary (schaudary@airecentre.org)
The AIRE Centre
May 2010
[2] IT-96-23-T & IT-96-23/1-T, 12 June 2002. The ICTY in this case looked at the definition of enslavement as a crime against humanity for sexual exploitation.
THE AIRE CENTRE
Advice on Individual Rights in Europe