Amongst all the rightful concerns about the Strasbourg Court’s case-overload, I often find myself wondering about the cases that the Court isn’t getting. Some structurally occurring human rights violations aren’t receiving the attention of the Court – at least not in any amount that is proportionate to their scale. Domestic violence against women is one example, as is trafficking and domestic servitude. There is an extremely worrying dearth of judgments on these issues.
C.N. v. the United Kingdom, a case about a woman who was held in domestic servitude, is therefore a welcome ruling. This is just the fourth judgment in which the Court finds a violation of the prohibition of slavery, forced labor and servitude (Article 4 ECHR). In this post I will highlight the most salient aspects of the Court’s reasoning.
The case concerns C.N., a woman from Uganda who traveled to the UK to escape from sexual and physical violence. A relative (P.S.) helped her to get to the UK, but once there, he took away her passport and traveling documents. C.N. began working for an elderly couple, being on-call day and night and getting just one afternoon per month off. Her wages were paid to P.S., who kept them and gave C.N. very little of it. After three and a half years, in August 2006, the applicant collapsed during a visit to a bank. She was taken to a hospital and was afterwards housed by a local authority. She applied for asylum, but was rejected. Her solicitor requested the police to investigate her situation. A police unit specialized in human trafficking investigated the case and came to the conclusion that there was no evidence of trafficking.
Both then and later the authorities appeared to have been suspicious of the applicant (who had entered the UK illegally) and incredible of her version of events. This despite the fact that the “POPPY Project”, a Government funded project providing housing and support for victims of trafficking, concluded that “she had been “subjected to five of the six indicators of forced labour” (as identified by the ILO). In particular, her movement had been restricted to the workplace, her wages were withheld to pay a debt she did not know about, her salary was withheld for four years, her passport was retained, and she was subjected to threats of denunciation to the authorities.” (par. 20).
At the time (2007 -2009) there was no law in the UK specifically criminalizing forced labor or servitude. This has since changed, with the enactment of Section 71 of the Coroners and Justice Act 2009.
The Court’s reasoning
The Court starts by holding that Article 4 ECHR entails a procedural duty on the part of the States to investigate “where there is a credible suspicion that an individual’s rights under that Article have been violated” (par. 69). The British authorities did open an investigation in this case, but this investigation was directed towards the offense of trafficking and not towards forced labor or servitude, because UK legislation in force at the time only specifically prohibited trafficking. The applicant argues that this made the investigation inadequate.
Frankly, I am surprised that the UK Government even tried to defend their lack of adequate legislation in Strasbourg. For one thing they later rectified this situation and for the other the ECtHR’s case law is clear on this point. In Siliadin v. France (2005) the Court unequivocally stated that: “it necessarily follows from this provision [Article 4] that States have positive obligations, in the same way as under Article 3 for example, to adopt criminal-law provisions which penalise the practices referred to in Article 4 and to apply them in practice” (par. 89 Siliadin).
So, not surprisingly, the Court holds that:
the legislative provisions in force in the United Kingdom at the relevant time were inadequate to afford practical and effective protection against treatment falling within the scope of Article 4 of the Convention . . . Instead of enabling the authorities to investigate and penalise such treatment, the authorities were limited to investigating and penalising criminal offences which often – but do not necessarily – accompany the offences of slavery, servitude and forced or compulsory labour. Victims of such treatment who were not also victims of one of these related offences were left without any remedy. (par. 76)
The Court then engages with the Government’s argument that there was no evidence to support the applicant’s claim. Referring to the third party interventions of the Aire Centre and the Equality and Human Rights Commission, the Court notes that:
domestic servitude is a specific offence, distinct from trafficking and exploitation, which involves a complex set of dynamics, involving both overt and more subtle forms of coercion, to force compliance. A thorough investigation into complaints of such conduct therefore requires an understanding of the many subtle ways an individual can fall under the control of another. In the present case, the Court considers that due to the absence of a specific offence of domestic servitude, the domestic authorities were unable to give due weight to these factors. (par 80)
I like this wording of “overt and more subtle forms of coercion” and “the many subtle ways an individual can fall under the control of another”. The Court tries to capture some of the complexity of the applicant’s situation. What is lacking, however, is a gender and migration perspective. The applicant’s situation is unfortunately far from unique. This is also shown by the fact that in all the cases in which the Court has so far found a violation of Article 4 standing alone (see footnote 1: Siliadin, Rantsev, C.N. and V. and the present case) the victims were both female and migrant. Referring to this Recommendation by the Parliamentary Assembly, the Court itself noted in Siliadin that “today’s slaves are predominantly female and usually work in private households, starting out as migrant domestic workers …” (par. 88, Siliadin).
If the Court really wants to address the root of the problem of domestic servitude it will have to incorporate a gender and migration analysis in its reasoning. For now, however, it is extremely significant that the Court has recognized what Virginia Mantouvalou so aptly terms the “legislative precariousness” of domestic workers.
 The other judgments being: Siliadin v. France (2005); Rantsev v. Cyprus and Russia (2010); and C.N. and V. v. France (2012). There are also two judgments that find a violation of Article 4 in conjunction with Article 14, but the Court’s analysis in these cases is really all about Article 14: see Zarb Adami v. Malta (2006) and Karlheinz Schmidt v. Germany (1994).