Trafficking in Persons and the European Court of Human Rights

This guest post was written by Dr. Roberta Avellino. Dr. Avellino studied Law at the University of Malta where she graduated as Doctor of Laws. She has moreover obtained a Master of Laws in International Law following research on trafficking in persons, security governance and State responsibility. She has recently published an article on the subject entitled ‘Trafficking in Persons: A Contemporary Threat to Human Dignity’ (please note that the file takes a while to open) in the first issue of a new law journal, the ELSA Malta Law Review. We are thankful to Dr. Avellino for her contribution to our blog and wish the European Law Students’ Association Malta all the best with their newly founded journal!

The European Convention on Human Rights makes no direct reference to the modern crime of trafficking in persons. However, Article 4 prohibits slavery, servitude and forced labour. But how should the parameters of servitude and the prohibition thereof be delineated? Is trafficking in persons included within the considerations of the Convention? The European Court of Human Rights (ECtHR) has attempted to clarify this issue through the case of Siliadin v France^[1] and held that a number of international human rights treaties aimed at protecting human beings from slavery, servitude and forced or compulsory labour. In referring to the Parliamentary Assembly of the Council of Europe, the Court also officially recognized the unfortunate truth of modern day slavery despite the abolishment of this practice more than 150 years ago.^[2]

On the 7^th of January 2010, the European Court of Human Rights delivered what has been considered ‘a historic first judgment concerning cross border human trafficking in Europe’[3] in Rantsev v Cyprus and Russia[4] and unanimously found that trafficking in persons falls within the parameters of Article 4 of the Convention.

The Court argued as follows in Rantsev: “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.”[5]

The Court ventured even further when it outlined three positive obligations arising under Article 4, namely that States must have in place a legislative and administrative framework to prohibit and punish trafficking, must take measures to protect victims or potential victims of trafficking where circumstances give rise to a credible suspicion of trafficking and have a procedural obligation to investigate situations of potential trafficking not only domestically but to cooperate effectively with other States concerned.[6]

In its judgment, the Court further clarified that it has repeatedly imposed on the State a positive obligation and duty to enact domestic legislation and undertake measures in order to safeguard human rights on a national level. In Young, James and Websters v United Kingdom, it argued that the obligations of States under the Convention include the duty to ‘secure to everyone within its jurisdiction the rights and freedoms defined in the Convention’.[7] Moreover, in Lopez Ostra v Spain, the Court held that a State is responsible for its failure to protect the enjoyment of fundamental rights and freedoms, to adopt appropriate preventive measures and to provide remedies and protection to victims.[8] The Court further refers to the judgment in the case of X and Y v the Netherlands[9] when the State was held responsible for not fulfilling its positive obligations of undertaking the necessary measures with the aim of securing respect for private life ‘even in the sphere of the relations of individuals between themselves’.[10]

Indeed, as demonstrated by the Rantsev judgment, a commendable feature of the European Convention on Human Rights and Fundamental Freedoms is the approach towards its application: the ECtHR is not strictly bound by the context and intentions of the Convention’s drafters but perceives the legal instrument as a contemporary document that reacts to and ‘progressively incorporates changing European social and legal developments’[11] in safeguarding fundamental human rights and freedoms.

For further reading on human trafficking in international law, please see Dr. Avellino’s publication in the ELSA Malta Law Review.

For specific further reading on the Rantsev case, see for instance Jean Allain, “Rantsev v Cyprus and Russia: The European Court of Human Rights and Trafficking as Slavery”, Human Rights Law Review,Vol. 10, No. 3, 2010, 546-557; Roza Pati, “States’ Positive Obligations with Respect to Human Trafficking: The European Court of Human Rights Breaks New Ground in Rantsev v. Cyprus and Russia“, Boston University International Law Review, Vol. 29, 2011, 79-142 (available here).