Chowdury and Others v. Greece: Further Integration of the Positive Obligations under Article 4 of the ECHR and the CoE Convention on Action against Human Trafficking

By Dr. Vladislava Stoyanova, author of Human Trafficking and Slavery Reconsidered. Conceptual Limits and States’ Positive Obligations in European Law (Cambridge University Press, 2017)[1]

 On 30 March 2017 the ECtHR delivered the Chowdury and Others v. Greece judgment (currently available only in French), where the Court found a violation of Article 4(2) of the ECHR in relation to 42 undocumented migrant workers from Bangladesh who worked on a strawberry farm in Manolada, Greece, and who were subjected to severe forms of labour exploitation. The summary of the factual circumstances is available here in English. The ECtHR found that the migrants’ circumstances amounted to forced labour and human trafficking and that Greece was in violation of its positive obligations under Article 4 to take protective operational measures and to conduct an effective investigation. From the perspective of the definitional scope of Article 4, this is an important judgment because Article 4 was found applicable although the migrant workers could freely move and leave the employment. The reason that they continued to work was that they were afraid that they would never receive their salaries. In a separate post published on EJIL: Talk! I will discuss how the Court applied the definitions of forced labour and human trafficking to the factual circumstances.

In this post I would like to focus on the Court’s reasoning regarding the positive obligation of taking protective operational measures and how its scope is shaped by the positive obligations imposed by the Council of Europe Convention on Action against Trafficking in Human Beings (CoE Trafficking Convention). First, it is worthwhile to observe that at the time of the events, the CoE Trafficking Convention was not in force in Greece (in entered into force only on 1 August 2014); this, however, did not prevent the Court from extensively drawing from it as a source for shaping the positive obligations triggered by Article 4 of the ECHR.

The assessment of the positive obligations under Article 4 starts with following introductory paragraphs:

 103. The Court reiterates that Article 4 of the Convention may, in certain circumstances, require the State to take concrete measures to combat trafficking in human beings and to protect the victims or potential victims of trafficking.

104. In particular, the positive obligations on States under Article 4 of the Convention must be interpreted in the light of the abovementioned Council of Europe Convention [CoE Trafficking Convention] and require, in addition to the adoption of measures of prevention, protection of victims and investigation, the criminalization and effective punishment of any act aimed at maintaining a person in such situations (Siliadin, cited above, para. 112). The Court draws its inspiration from this Convention and from the manner in which it is interpreted by GRETA [Group of Experts on Trafficking in Human Beings] [emphasis added]. [translation by me]

There are two important conclusions that flow from the above paragraphs.

1. Positive obligations under Article 4

First, the positive obligations under the CoE Trafficking Convention have been inserted under Article 4, which has such an impact on the reasoning that the Court seems to depart from the usual structure of its analysis when it comes to the positive obligation of taking protective operational measures. In particular, the Court starts to answer the question whether the State has fulfilled its positive obligation to take protective operational measures by first outlining the range of positive measures required by the CoE Trafficking Convention:

110. The Court recalls that the Council of Europe Convention on Action against Trafficking in Human Beings draws attention to a range of measures to prevent trafficking and to protect the rights of victims. Preventive measures include measures to strength cooperation at the national level between the various anti-trafficking bodies and to discourage demand for all forms of exploitation of persons, including border controls to detect trafficking. Protection measures include those aimed at facilitating the identification of victims by trained persons and assisting victims in their physical, psychological and social recovery. [translation by me]

Then in the next paragraphs the Court outlined the level of general knowledge by the State about the severe forms of abuses that undocumented migrant workers were subjected to in the strawberry fields of Manolada (para. 111-2). The Court also observed that the State authorities were aware that the employer of the specific applicants had refused to pay their salaries (para. 114). The judgment seems to imply that, given the State authorities’ knowledge about the circumstances, they should have taken the measures demanded by the CoE Trafficking Convention (see paragraph 110 of the judgment quoted above). In this sense, the Court assessed the national authorities’ response to the abuses, to which undocumented migrant workers were subjected, as insufficient (para. 113) against the background of the positive measures required by the CoE Trafficking Convention.

Surprisingly, when assessing the positive obligation of taking protective operation measures, the Court does not mention the ‘impossible and disproportionate burden test.’ Starting with Osman v. the United Kingdom (para.116) and as affirmed in Rantsev v. Cyprus and Russia (para.287, for a commentary see) and L.E. v. Greece, this test has been an important part of the Court’s evaluation:

Bearing in mind the difficulties involved in policing modern societies and the operational choices which must be made in terms of priorities and resources, the obligation to take operational measures must, however, be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.

Chowdury and Others v. Greece appears to imply that the measures to prevent and protect demanded by the CoE Trafficking Convention cannot be considered as imposing such disproportionate burden.

2. The positive obligations under the CoE Trafficking Convention affect not only cases of human trafficking, but the whole of Article 4 of the ECHR

The second important conclusion that flows from the above quoted para. 104 of the judgment concerns the limited personal scope of the CoE Trafficking Convention. More specifically, the cluster of positive obligations imposed by the CoE Trafficking Convention has a personal scope limited to victims of human trafficking as defined in Article 4(a) of the Convention. As a consequence, victims of forced labour, servitude and slavery do not enjoy the same level of protection. This gap has been made clear by the EU Fundamental Rights Agency in the study Severe Labour Exploitation: Workers Moving within or into the European Union. States’ Obligations and Victims’ Rights:

While trafficking has attracted much attention, the severe exploitation of workers in employment relationships – which may or may not occur in a context of trafficking – has not. This difference in the level of attention is reflected by an institutional setting in which specialised actors are available to deal with trafficking cases but not with cases of severe labour exploitation. (page. 42)

Chowdury and Others v. Greece is a step forward for responding to the above concern since the judgment implies that irrespective of the legal qualification of the circumstances as human trafficking or forced labour, the positive obligations generated by Article 4 of the ECHR must in principle be interpreted in light of the CoE Trafficking Convention.

[1] Vladislava is a lecturer and postdoctoral fellow at the Faculty of Law, Lund University Sweden, where she teaches human rights law and migration law. Currently, she works on a project on positive obligations under the ECHR. She intervened in the case by submitting a third-party-intervention on behalf of her law faculty. The intervention contained views as to how the definition of forced labour can be addressed in the context of Article 4 of the ECHR and how it could be distinguished from the separate but related concept of servitude. The intervention also examined the interaction between the positive obligations under Article 4 of the ECHR and the CoE Convention on Action against Trafficking in Human Beings.