February 02, 2016
By Vladislava Stoyanova, Postdoctoral Researcher, Faculty of Law, Lund University, Sweden. Author of Human Trafficking and Slavery Reconsidered. Conceptual Limits and States Positive Obligations in European Law (Cambridge University Press, 2016 forthcoming)
Against the backdrop of the rich judicial output of the ECtHR, the case law under Article 4 of the ECHR is scarce. This is more than surprising against the backdrop of ample empirical evidence showing that migrants, including sex workers, are subjected to severe forms of exploitation in Europe (see, for example, the report by the EU Fundamental Rights Agency published in 2015 Severe Labour Exploitation: Workers Moving within or into the European Union. States’ Obligations and Victims’ Rights). To be more precise, the existing judgments in which the Court has dealt with abuses inflicted by non-state actors (i.e. employers) reaching the level of severity of Article 4 are five: Siliadin v. France, Rantsev v. Cyprus and Russia, C.N. and V. v. France, C.N. v. The United Kingdom and M. and Others v. Italy and Bulgaria (the complaint under Article 4 was found inadmissible in this case). On 21 January 2016, the ECtHR delivered L.E. v. Greece, which is the sixth judgment in this context. It is an important judgment not only because it is a positive step for remedying the above mentioned dearth of judicial engagement with exploitation of migrants in Europe, but also because it raises some intriguing questions about positive obligations under the ECHR. In this note, I will cover some of these.
Brief Summary of the Facts
The applicant, L.E., a Nigerian woman born in 1982, entered Greece in 2004 accompanied by K.A., who had allegedly promised her that once in Greece she would work in bars and nightclubs. As a result of these arrangements, she owed him 40 000 Euro. Upon arrival, K.A. confiscated her passport and forced her into prostitution for about two years. In the meantime, L.E. was arrested three times for breaching the laws on prostitution and the laws on entry and residence of aliens in Greece. These proceedings resulted in acquittals.
On 29 November 2006, while still in detention pending deportation, L.E. with the support of Nea Zoi (an NGO specialized in providing material and psychological support for women forced into prostitution), filed a criminal complaint against K.A. and his partner D.J., accusing them of forcing her into prostitution. At this point, L.E. also claimed that she was a victim of human trafficking. The prosecutor at the Athens Criminal Court rejected this claim. In January 2007, the applicant requested a re-examination of her complaint since important evidence was not taken into consideration. In particular, the testimony provided by Nea Zoi was not included in the record.
The request for re-examination was successful and the prosecutor did bring criminal proceedings against K.A. and D.J. for human trafficking. At this junction, the prosecutor officially recognized the status of the applicant as a victim of human trafficking and her deportation was suspended. The national criminal proceedings, resulted in the arrest and subsequent prosecution of D.J., who was eventually found not guilty since it was determined that D.J. was not K.A.’s accomplice, but rather another of his victims who had been sexually exploited. K.A. was not prosecuted since he could not be located.
Positive Obligations under Article 4
No contentious issues were raised as to the applicability of Article 4 of the ECHR. Since the national authorities themselves had eventually granted the applicant the status of a victim of human trafficking, the Court proceeded under the assumption that the definitional threshold of Article 4 is met and this provision is applicable. The heart of the judgment rather lies in the determination of whether Greece has failed to fulfill its positive obligations under Article 4. Following the tenor of Rantsev v. Cyprus and Russia, the Court examined whether Greece has failed to fulfill its positive obligations to (i) adopt effective legal and regulatory framework; (ii) take protective operational measures; and (iii) conduct effective investigation and criminal proceedings.
The Court’s approach to the positive obligation of adopting effective regulatory framework is overall very shallow. It was simply noted that there is national legislation criminalizing human trafficking and ensuring protection of victims of trafficking. It was also added that Greece has ratified the UN Trafficking Protocol and the CoE Convention on Action against Human Trafficking and has transposed the relevant EU Directive (paras.70-71). As a consequence, the Court concluded that there is no failure on behalf of the national authorities in this respect. This is an unsatisfactory engagement with the positive obligation of adopting effective regulatory framework because as the factual substratum of the case reveals in practice the protection and assistance measures for victims of human trafficking in Greece are barely effective. They turned out to be ineffective because the identification procedure for victims of trafficking was entirely dependent on the initiation of criminal proceedings. As a consequence, it is doubtful whether protection and assistance of victims effectively serve the purpose of actually helping them; or rather, it serves purposes primary related to the criminal proceedings.
The Court preferred to analyze the deficiencies in the national procedure for identification of victims of human trafficking through the lens of the positive obligation to take protective operational measures. As a consequence, the Court’s approach to the latter positive obligation is more rigorous. This can be acclaimed; however, my concern is that in this way the deficiencies in the identification procedure are not represented as a structural problem (which I think they are and for this reason it might have been preferable to examine them through the lens of the positive obligation of adopting effective regulatory framework), but rather as an isolated incident which happened to the particular applicant.
The Court determined that on 29 November 2006 when the applicant articulated her claim that she was a victim of human trafficking, the positive obligation of taking protective operational measure was triggered. Greece failed to fulfill this positive obligation because there was a nine month time lapse between the articulation of her claim and her formal recognition as a victim of human trafficking. This delay was considered to be unreasonable. What follows from the Court’s reasoning is that identification and formal conferral of the status of a victim of human trafficking (measures which states are required to take in order to fulfill their obligations under the CoE Trafficking Convention and the EU law on trafficking) are absorbed under the positive obligation of taking protective operational measures under Article 4 of the ECHR.
Finally, Greece was also found to have failed to conduct an effective investigation; the national court proceedings were also found to be deficient. There were various aspects that were unsatisfactory: the testimony provided by the director of Nea Zoi, who was in continuing contact with the applicant and reported that she was a victim of trafficking, was not initially included in the record; after the inclusion of this testimony, the competent authorities did not initiate a renewal of the proceedings, rather it was the applicant who had to do this; there were long periods of inactivity; the police did not search other addresses mentioned by L.E. where the alleged perpetrator might have been; the police did not try to gather additional information, etc.
Overall, the Court’s scrutiny of the quality of the investigation conducted at the national level is very strong. Perhaps an interesting aspect worth to be distinguished here is that in its assessment of the quality of the investigation, the Court noted that the Greek authorities have not sought cooperation from the Nigerian authorities in order to locate and arrest K.A. Since human trafficking often transcends international borders and this transnational aspect can constitute a challenge when the national authorities investigate the crime, cooperation with other states might be essential. This was first acknowledged by the Court in para. 289 of Rantsev v. Cyprus and Russia, where it is stated that ‘ […] States are also subject to 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’. In M. and Others v. Italy and Bulgaria (para. 169), the Court alluded that since the Bulgarian authorities had maintained constant contact and co-operated with the Italian authorities, the complaint under Article 4 against Bulgaria was dismissed.
Overall, L.E. v. Greece can be assessed as a positive step forward; a step, which will hopefully contribute to bringing Article 4 of the ECHR out of the shadows and entrenching it as a provision enshrining an important right in the CoE legal order.
 There is a separate line of case law addressing the issue of labour demanded by the state, a demand which might amount to forced labour and thus be in breach of Article 4. See, for example, Chitos v. Greece, App.No.51637/12, 4 June 2015.