February 07, 2017
Guest post by Dr. Vladislava Stoyanova, Lecturer and Postdoctoral Fellow, Faculty of Law, Lund University, Sweden (*)
J. and Others v. Austria delivered by the Strasbourg Court on 17 January 2017 adds to the slowly developing body of case law under Article 4 of the ECHR (the right not to be subjected to slavery, servitude and forced labour). For an overview of relevant judgments see my previous post here. Although the Court did not find that Austria was in breach of its procedural obligation under Article 4 (the obligation to investigate), I would like to draw attention to some important pronouncements in the judgments that might hold essential potential in relation to the obligation upon states to identify victims of human trafficking. I would like to also draw attention to the poor engagement by the Court with the definitional challenges raised by Article 4, a deficiency that can be traced back to Rantsev v. Cyprus and Russia.
Brief summary of the facts
The application was lodged by three women nationals of the Philippines. As they described their story, the first and the third applicant were recruited by an employment agency to work as au pairs in Dubai, the United Arab Emirates. The second applicant did not use the services of an agency. Instead, she travelled to Dubai at the suggestion of the first applicant. Their passports were taken away. They were subjected to ill-treatment and exploitation by their employers. In 2 July 2010 the applicants’ employer took them along on a short holiday trip in Austria. They stayed in the same hotel as their employer, took care of the children and performed other domestic duties. Their passports remained with their employer. One or two days after their arrival in Austria, they were subjected to extreme form of verbal abuse and threats since one of the children went missing. The night following the incident, the applicants left the hotel with the help of a hotel employee with whom they became acquainted.
It was only in July 2011 when the applicants decided to turn to the police and filed criminal complaints against their employer. They also claimed that they were victims of human trafficking and were willing to cooperate with the police. Criminal proceedings were initiated but subsequently discontinued since the alleged offences had been committed abroad and not by Austrian citizens. The applicants complained to the ECtHR that Austria had failed to undertake an effective investigation into their allegations that they had been victims of human trafficking.
Poor engagement with the definitional stage under Article 4
The Court’s assessment starts off with some general statements about human trafficking. Most of these are repetitions of what the Court has already stated in Rantsev. The Court also added that it did not have to classify human trafficking as slavery, servitude or force labour since ‘[t]he identified elements of trafficking – the treatment of human beings as commodities, close surveillance, the circumscription of movement, the use of violence and threats, poor living and working conditions, and little or no payment – cut across these three categories’ (para.104). The Court thus simply refuses to take cognizance of the differences between these different terms within the conceptual apparatus of Article 4. Similarly to what it did in Rantsev, the Court simply determined that the facts of the case fall within the definitional scope of Article 4 without any analysis to this effect: ‘[…], the Court considers that the applicants’ allegations fell within the ambit of Article 4 of the Convention, as established by its case law on the subject’ (para.108).
There is, however, one important difference between Rantsev and J. and Others. The applicants in the latter case were officially recognized as victims of human trafficking by the national authorities and provided with assistance to this effect. Therefore, it could be argued that the Court deferred to the findings made at national level (such deference was, however, not made explicit in the judgment itself).
Moving to the obligations upon Austria, the Court stated that ‘the instant case essentially raises two questions: whether the Austrian authorities complied with their positive obligation to identify and support the applicants as (potential) victims of human trafficking, and whether they fulfilled their positive obligation to investigate the alleged crimes.’ I will first briefly comment on the obligation to investigate and then return to the issue of identification and support for victims.
No violation of the procedural limb of Article 4
No universal jurisdiction to investigate the recruitment and exploitation abroad
One of the core issues concerning the procedural limb of Article 4 was whether Austria was under the obligation to investigate the crimes allegedly committed abroad. The CoE Convention on Action against Human Trafficking contains a provision (Article 31) addressing the issue of criminal jurisdiction. It obliges State Parties to establish criminal jurisdiction based on the territorial, the nationality and the passive nationality principles. Under Article 31(2), however, states have the discretion not to apply the nationality and the passive nationality principles. Article 31(3) adds that criminal jurisdiction shall be established ‘in cases where an alleged offender is present in its territory and it does not extradite him/her to another Party, solely on the basis of his/her nationality.’ In comparison with the CoE law, Article 10(1)(b) of the EU Trafficking Directive has introduced a change by making it mandatory, for the Member States bound by it, to establish their criminal jurisdiction where the offender is one of their nationals. This was however not relevant to the specific case.
Therefore, the human trafficking legal framework itself (i.e. the CoE Trafficking Convention and the EU Trafficking Directive) does not envision anything close to universal jurisdiction. As the Court determined in J. and Others, Article 4 of the ECHR does not impose such a requirement either: ‘[…] under the Convention, there was no obligation incumbent on Austria to investigate the applicants’ recruitment in the Philippines or the alleged exploitation in the United Arab Emirates’ (para. 114 of the judgment).
No failure to investigate the harboring and receipt in Austria
As human trafficking is defined in the CoE Convention on Action against Human Trafficking, the action element of the crime includes ‘harboring’ and ‘receipt’ of persons for the purpose of their exploitation. An argument thus can be advanced that Austria had criminal jurisdiction based on the territorially principle and was under the obligation to investigate any harboring and receipt of the applicants in Austria. In this respect, however, no failures were found by the Court (para.116) since the efforts by Austria in terms of investigation were found sufficient. Most importantly, in light of the fact that the police was alerted only approximately one year after the alleged events when the employers had long left Austria, no unreasonable expectations could be raised against Austria in terms of investigation.
An additional step that the Austrian authorities could have undertaken to fulfill their investigative duties under Article 4 was requesting assistance from the United Arab Emirates. This makes J. and Others an interesting case because it raises the question of how much effort states need to invest in terms of seeking cooperation from other states in order to fulfill their procedural duties under Article 4. In this particular case, any steps to seek cooperation from the United Arab Emirates were assessed by the Court without any reasonable prospect of success.
Independence between crime investigation and victim identification
Another aspect of the case concerns the obligation to identify victims of trafficking and to provide them with assistance. It was easily found by the Court that Austria had not failed in this respect. However, the case did provide the Court with an opportunity to frame in very lucid and firm terms that Article 4 of the ECHR generates a positive obligation upon states to identify and support (potential) victims of trafficking and for this purpose states have to build a legal and administrative framework (paras. 109 and 111 of the judgment). As much important, the Court made it clear that the identification and the assistance of victims is independent from any criminal proceedings. While the latter are intended to identify and potentially prosecute alleged traffickers, the former have a very different purpose (i.e. identification and assistance of victims). More specifically the Court stated the following:
The applicants argued that the Austrian authorities had accepted that they were victims of the crime of human trafficking by treating them as such (see paragraphs 88-91 above). However, the Court does not consider that the elements of the offence of human trafficking had been fulfilled merely because the Austrian authorities treated the applicants as (potential) victims of human trafficking (see paragraphs 110-111 above). Such special treatment did not presuppose official confirmation that the offence had been established, and was independent of the authorities’ duty to investigate. Indeed, (potential) victims need support even before the offence of human trafficking is formally established, otherwise this would run counter to the whole purpose of victim protection in trafficking cases. The question of whether the elements of the crime had been fulfilled would have to have been answered in subsequent criminal proceedings (para.115). Emphasis added.
GRETA (the Group of Experts on Action against Trafficking in Human Beings), the body mandated to monitor the implementation of the CoE Trafficking Convention, has noted in many of its reports that often the process of victims’ identification and assistance is merged with criminal proceedings. As a consequence, victims might not be identified or might not be identified and assisted unless somehow of use for the criminal proceedings. Hopefully, J. and Others, and the clear articulation by the Court of the independence between crime investigation and victim identification, will introduce some positive changes.
(*) Author of Human Trafficking and Slavery Reconsidered. Conceptual Limits and States’ Positive Obligations in European Law (Cambridge University Press, 2017). Currently working on a postdoctoral project entitled ‘Positive Obligations under the ECHR’.
 See also V Stoyanova, “L.E. v Greece: Human Trafficking and the Scope of States’ Positive Obligations under the ECHR” 3 European Human Rights Law Review (2016) 290-300, available at http://papers.ssrn.com/author=1617529
 See V Stoyanova, “Dancing on the Borders of Article 4: Human Trafficking and the European Court of Human Rights in the Rantsev Case” 30(2) Netherlands Quarterly of Human Rights (2012), available at https://works.bepress.com/vladislava_stoyanova/5/
 V Stoyanova, Human Trafficking and Slavery Reconsidered. Conceptual Limits and States’ Positive Obligations in European Law (Cambridge University Press, 2017) 76.
 For detailed investigation see V Stoyanova, Human Trafficking and Slavery Reconsidered. Conceptual Limits and States’ Positive Obligations in European Law (Cambridge University Press, 2017).