The relevance of regional human rights law: an emerging case law

4.1. Introduction

As discussed under section 1, generalist human rights law at the regional level does not often refer to human trafficking. And when it does so, it addresses it through a very succinct prohibi-tion that fails to provide details on the range of obligaprohibi-tions that arise from that prohibiprohibi-tion.

However, the positive obligations doctrine unanimously developed by human rights tribunals and quasi-judicial bodies at both regional and universal level has been instrumental in identify-ing States’ obligations in the area of human traffickidentify-ing on the basis of generalist human rights treaties. In that context, the ECtHR and the IACtHR are the only ones among judicial or quasi-judicial bodies that have found States’ responsibility engaged for violating their international obligations in the area of human trafficking. Considering the importance of these decisions for an adequate understanding of the legal boundaries of the human trafficking prohibition in in-ternational law and of the scope of States’ obligations in this area as arising under regional human right law, an examination of the relevant case law is required. While this section offers an overview of the key features and findings of these rulings, a more detailed analysis of spe-cific aspects pertaining to victim protection is to be found in Part II under the relevant thematic sections.

Reference should also be made to the fact that other regional or sub-regional bodies or courts, such as the Inter-American Commission of Human Rights, the African Commission on Human and Peoples’ Rights and the ECOWAS Court, have examined and adjudicated cases on forms of exploitation that are closely related to trafficking: slavery, servitude or forced labour. While

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the findings made in these decisions may to a certain extent be relevant to human trafficking, these rulings will not be examined here since in none of them was a specific human trafficking finding made²³⁷.

Finally, the other Court established at the European regional level, the CJEU, is competent to rule on human trafficking both under the CFREU trafficking prohibition and under the Traf-ficking Directive. It has, however, not yet had an opportunity to rule on a human trafTraf-ficking case, as mentioned under the previous heading.

4.2. The case-law of the European Court of Human Rights

At the outset, it should be said that the possibility of a judgment being issued on a trafficking case within the Council of Europe was not clear at all. This is due to the fact that, on the one hand, the ECtHR is competent to issue judgments on violations of the European Convention on Human Rights that, as mentioned, does not include an express prohibition of human traffick-ing. On the other hand, the 2005 Trafficking Convention does not establish a control mecha-nism of a jurisdictional nature.

However, due to the importance of the phenomenon and the increasing submission of relevant complaints under Article 4 of the prohibition of slavery, servitude and forced labour, the Court finally addressed the issue of trafficking. First in a tangential way, in the 2006 Siliadin v.

France, and then directly in Rantsev v. Cyprus and Russia in 2010, a landmark first human trafficking case with important implications for States’ obligations in relation to human traf-ficking. After a period of relative unproductivity, where a number of inadmissibility and strike-out decisions where taken²³⁸, the Court issued three more judgments on human trafficking be-tween 2016 and 2017: L.E. v Greece, J. and Others v Austria, and Chowdury and Others v Greece. An overview of the main contributions of these cases follows.

4.2.1. Siliadin

In 2005, when the European Trafficking Convention had just been adopted and had not entered into force yet, the Court issued its first judgment relating to a potential trafficking case. Indeed, the Siliadin case had abundant elements to be considered as a human trafficking case. Ms. Sili-adin was a fifteen-year-old girl who was brought from Togo to France with the intention to study but was instead put to work without pay as a domestic servant in a private household: her passport confiscated, she worked 15 hours a day without any day off for several years. Howev-er, the Court did not categorize that situation as trafficking²³⁹.

237 For a review of these cases, see H. Duffy, “Litigating Modern Day Slavery in Regional Courts: a Nascent Con-tribution”, Journal of International Criminal Justice, vol. 14, 2016, pp. 375-403.

238 Indeed, the ECtHR received other complaints based on trafficking allegations, where claims related to two main points: the lack of appropriate protection by the State and the denial of refugee status. None of them resulted in a judgment under Article 4. In a first set of cases, trafficking allegations where declared inadmissible for being manifestly ill-founded (V.F. v France Application No. 7196/10, Admissibility, 29 November 2011; or M. and Others v. Italy and Bulgaria Application No. 40020/03, Merits and Just Satisfaction, 31 July 2012) or because of lack of compliance with procedural requirements (F.A. v. United Kingdom Application No. 20658/11, Admissibil-ity, 10 September 2013; or G.J. v Spain, Application no. 59172/12, AdmissibilAdmissibil-ity, 21 June 2016). The other cases were struck out by the Court in light of the conclusion of a friendly settlement based on the concession of refugee status or subsidiary protection by the concerned State (see O.G.O. v. the United Kingdom, Application No.

13950/12, Strike Out, 18 February 2018; D.H. v. Finland, Application No. 30815/09, Strike Out, 28 June 2011;

L.R. v. the United Kingdom, Application No. 49113/09, Strike Out, 14 June 2011; B.L. v. France, Application No.

25037/09, Strike Out, 17 May 2011; or M. v. the United Kingdom, Application No. 16081/08, Strike Out, 1 De-cember 2009).

239 Piotrowicz also argues that this was most probably a trafficking case, in R. W. Piotrowicz, “States’ Obligations under Human Rights Law towards Victims of Trafficking in Human Beings: Positive Developments in Positive Obligations”, International Journal of Refugee Law, vol. 26(2), 2012, p. 190. See also Cullen who refers to Ms.

Both in Siliadin and it its successive case law, the Court essentially focused its legal reasoning on two main issues in order to adjudicate the relevant cases. Firstly, what conducts are prohib-ited under Article 4 of the Convention (and does the situation at stake fall under these prohibit-ed conducts)? And secondly: what is the scope of States’ positive obligations in relation to that conduct, which is generally perpetrated by non-State actors (and did the State fail to comply with them in the case at stake)?

In relation to the first issue, Siliadin provides the first comprehensive analysis of the Court in that regard. It considers the various concepts included in Article 4, i.e. slavery, servitude and forced or compulsory labour. It clarifies that, in order to understand the meaning and scope of these prohibited acts, which neither the ECHR nor the travaux préparatoires define, these should be interpreted in light of other international law provisions that define these concepts. In order to interpret the prohibition of forced or compulsory labour, the Court points to the need to rely on the definition included in Article 2(1) of the Forced Labour Convention²⁴⁰, recalling a previous case, Van der Mussele v. Belgium, where it had already made that finding²⁴¹. Like-wise, in order to interpret the prohibition of slavery and servitude included in Article 4 of the ECHR, the Court refers to the definitions included in the 1926 Slavery Convention and the 1956 Supplementary Slavery Convention. Based on these definitions, the Court distinguishes between the three concepts of forced labour, servitude and slavery, and holds that, in order to assess whether France has violated Article 4, it needs to ascertain whether the situation under scrutiny falls within one or more of these distinct categories²⁴².

The Court reaches the conclusion that Ms. Siliadin was subjected to forced labour as well as servitude,²⁴³ but not to slavery. The Court held that she had not been held in slavery because the people for whom she was forced to work did not exercise a genuine right of legal owner-ship over her²⁴⁴. This finding has generally been criticized as providing a too narrow under-standing of slavery: as slavery de jure has been abolished, referring to legal ownership over a person limits the applicability of Article 4(1) to cases that are not legally possible today²⁴⁵. The prohibition of slavery should be understood as including slavery de jure and de facto. In fact, the contemporary relevance of the definition lies in its application to de facto situations of slavery, where control tantamount to possession is exercised over a person²⁴⁶. Finally, the Court makes no reference to human trafficking.

With regard to the second issue, the scope of States’ obligations in relation to Article 4, the Court recognizes for the first time that Article 4 imposes positive obligations on States. While the expansion of the list of rights to which positive obligations are attached is welcome, its impact is limited by the fact that the Court exclusively focused on the positive obligation to put in place adequate criminal law provisions. The Court considered that France’s positive obliga-tions under Article 4 only amounted to adopting an appropriate criminal law framework that

Siliadin as a “trafficked child worker”, in H. Cullen, “Siliadin v France: Positive Obligations under Article 4 of the European Convention on Human Rights”, Human Rights Law Review, vol. 6(3), 2006, p. 590.

240 In Article 2(1) of ILO Forced Labour 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”.

241 Van der Mussele, para 32; quoted in Siliadin, paras. 115-116.

242 Siliadin, paras. 117 and 121.

243 Siliadin, paras. 120 and 129.

244 Siliadin, paras. 122.

245 See R. W. Piotrowicz, “States’ Obligations under …”, cit., p. 189.

246 See the thorough analysis of the notion of slavery in international law based on the concept of slavery de facto by J. Allain (which resulted in the development of the 2012 Bellagio-Harvard Guidelines on the Legal Parameters of Slavery) in J. Allain, Slavery in International Law …, cit., pp. 117-142.

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allowed the effective prosecution of the perpetrator of these acts²⁴⁷. The Court followed this narrow view again in a couple of similar cases where applicants were found to have been sub-jected to forced labour and servitude²⁴⁸. While the Siliadin decision was taken in 2005, the per-sistence of this approach in these 2012 cases is worth highlighting, as they have been adjudi-cated after Rantsev, at a time where the Court had already adopted a broader approach to posi-tive obligations in the context of a trafficking case.

Indeed, in Siliadin the Court failed to refer to measures aimed at guaranteeing the protection of the victim but also to broader preventive actions not related to the criminal justice field. At that time, some commentators already criticized this narrow focus by the Court, noting that the needs of exploited children such as Ms Siliadin go much further than the mere adoption of criminal sanctions and include protection from deportation, the need for regularisation of their immigration status and rehabilitation measures such as re-housing and education²⁴⁹.

More generally, the excessive focus of the ECtHR on criminal law as the principal remedy for human rights violations has been criticized by distinguished commentators, as a trend that re-vealed a contradiction with the original function of international human rights law as a “shield”

against States’ abusive use of criminal law, creating a paradoxical relationship between these two branches of law²⁵⁰. Beyond this debate on the appropriateness of the use of criminal law as a prominent tool to enhance the protection of human rights, it has been righty highlighted that

“the focus on criminal remedies should not relieve States of their duty to promote and protect conventional rights through other measures”²⁵¹. Which should also include, in addition to the measures listed above, access to compensation²⁵².

4.2.2 Rantsev

When five years later the Court rules on the Rantsev case, the European Trafficking Conven-tion had already come into force. This has clearly influenced its reasoning. This case involved Ms Rantseva, a Russian national who entered Cyprus on an artiste visa and after three days of being forced into prostitution, escaped from the club where she was working. However, 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 hardly interviewed her and, not intending to deport her, contacted the alleged traffickers to come and pick her up. Several hours later Ms Rantseva was found dead on the pavement outside the apartment building of one of the men concerned. The applicant (Mr. Rantsev, Ms. Rantseva’s father) chiefly complained about the failure to investigate the allegations of human trafficking and his daughter’s death, as well as the failure to protect the life of his daughter.

In Rantsev, the Court focuses for the first time on human trafficking as a phenomenon of con-cern. Noting that the absence of a reference to trafficking in Article 4 is unsurprising – as the

247 Siliadin, paras 130-149.

248 CN and V. v France and CN v United Kingdom.

249 H. Cullen, “Siliadin v France: Positive Obligations…”, cit., p. 590. Pitea raised similar concerns in relation to a rape case adjudicated that same year where the Court refused to grant compensation to the 13 years’ old victim, placing too much faith in criminal sanctions as the exclusive remedy for human rights violations; in C. Pitea,

“Rape as a Human Rights Violation and a Criminal Offence: The European Court’s Judgment in M.C. v. Bulgar-ia”, Journal of International Criminal Justice, vol. 3, 2005, p. 456.

250 See F. Tulkens, “The Paradoxical Relationship between Criminal Law and Human Rights”, Journal of Interna-tional Criminal Justice, vol. 9, 2011, pp. 577-595; W. Schabas, “Droit pénal et droit internaInterna-tional des droits de l’homme: faux frères?”, in Henzelin and Roth (eds), Le droit pénal à l’épreuve de l’internationalisation, 2002, pp.

165-167; S. Trechsel, “Comparative Observations on Human Rights and Criminal Law”, St. Louis-Warsaw Transatlantic Law Journal, vol. 1, 2000, p. 3.

251 C. Pitea, “Rape as a human rights …”, cit., p. 456.

252 Ibid.

Convention was inspired by the Universal Declaration of Human Rights which itself made no express mention of trafficking – it recalls its established principle that the ECHR is a living instrument which must be interpreted in the light of present-day conditions²⁵³. After establish-ing the incompatibility of human traffickestablish-ing with the values expounded in the Convention, it acknowledges that the adoption of the Palermo Protocol and the European Trafficking Conven-tion demonstrate the increasing recogniConven-tion at internaConven-tional level of the prevalence of traffick-ing and the need for measures to combat it²⁵⁴. It further relies on the judgment of the Interna-tional Criminal Tribunal for the Former Yugoslavia (ICTY) in Kunarac to update its appraisal of the concept of slavery, departing from the restrictive interpretation of slavery made in Sili-adin²⁵⁵. On that basis, the Court reaches the conclusion that trafficking, within the meaning of the Palermo Protocol and the European Trafficking Convention, falls within the realm of Arti-cle 4 of the ECHR.²⁵⁶

While a judgment by the Court stating that trafficking violated the convention was undoubtedly welcome, the Court did not bring clarity on how this happens from a legal perspective. First, in stating that trafficking “is based on the exercise of powers attaching to the right of ownership”, it actually says that trafficking is based on slavery or is a form of slavery, which is an arbitrary limitation considering that the definition of trafficking includes other forms of exploitation separate from slavery²⁵⁷. Yet, immediately after the Court states that trafficking itself violates Article 4, without the need to identify whether it constitutes slavery, servitude or forced labour.

In sum, instead of clarifying the links between trafficking and the conducts prohibited under Article 4, by indicating to which practice Ms. Rantseva had been subjected, the Court simply

“avoided the issue by declining to say precisely how trafficking of human beings is a violation of Article 4”²⁵⁸.

The reasoning of the Court is much clearer in relation to the second main aspect of the judg-ment. In Rantsev, the Court broadens the scope of states’ obligations under Article 4 as previ-ously identified in Siliadin. In doing so, the Court explicitly relies on the requirements of the European Trafficking Convention and the Palermo Protocol in this area:

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. […] The Court observes that the Palermo Protocol and the

253 Rantsev, para 277 and 282. The “living instrument” doctrine is firmly rooted in the case law of the Court since the case of Tyrer v. The United Kingdom Application no. 5856/72, Merits and Just Satisfaction, 25 April 1978.

See G. Letsas, “The ECHR as a living instrument: its meaning and legitimacy”, in A. Føllesdal, B. Peters and G.

Ulfstein (eds), Constituting Europe. The European Court of Human Rights in a National, European and Global Context, 2013, pp. 106-141; and L. Wildhaber, “The European Court of Human Rights in action”, vol. 21, 2004, Ritsumeikan Law Review, pp. 83-92

254 Rantsev, para 278.

255 “The Court observes that the [ICTY] concluded that the traditional concept of "slavery" has evolved to encom-pass 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”, Rantsev, para 280.

256 In relation to the concept of “European consensus” extensively used by the Court, Letsas considers that Rantsev, together with other cases such as Goodwin v The United Kingdom or Demir and Bankara v Turkey, man-ifest a new approach where the Court, in order to discard the State’s margin of appreciation, does not rely on a European consensus but, instead, on a “trend of evolution” or “emerging consensus” (at the time of Rantsev, the Convention had been ratified by 26 out of the 46 member States of the CoE); in G. Letsas, “The ECHR as a living instrument …”, cit., pp. 119 and 121-122.

257 In this vein, see J. Allain, “Rantsev v Cyprus and Russia: The European Court of Human Rights and Traffick-ing as Slavery”, Human Rights Law Review, vol. 10, 2010, p. 554.

258 R. W. Piotrowicz, “States’ obligations …” cit., p. 196. In the same vein, see also J. Allain, “Rantsev v Cyprus and Russia …”, p. 554; and H. Askola, “Art 5 – Prohibition of Slavery and Forced Labour”, in S. Peers et al., The EU Charter of Fundamental Rights: A Commentary, 2014, p. 116.

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Trafficking Convention refer to the need for a comprehensive approach to combat traffick-ing which includes measures to prevent trafficktraffick-ing and to protect victims, in addition to measures to punish traffickers […]. 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 Eu-rope, have formed the view that only a combination of measures addressing all three aspects can be effective in the fight against trafficking. Accordingly, the duty to penalise and

Trafficking Convention refer to the need for a comprehensive approach to combat traffick-ing which includes measures to prevent trafficktraffick-ing and to protect victims, in addition to measures to punish traffickers […]. 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 Eu-rope, have formed the view that only a combination of measures addressing all three aspects can be effective in the fight against trafficking. Accordingly, the duty to penalise and