November 18, 2021
By John Trajer
With Zoletic and Others v. Azerbaijan, delivered on 7 October 2021, the European Court of Human Rights (‘the ECtHR’ or ‘the Court’) has signalled once again a growing eagerness to intervene on issues related to slavery, servitude, forced labour, and human trafficking under Article 4 of the European Convention on Human Rights (ECHR). The case concerned allegations of cross-border human trafficking and forced labour by 33 nationals of Bosnia and Herzegovina – a scenario which calls to mind the Court’s 2017 judgment in Chowdury and Others v. Greece, where large numbers of Bangladeshi migrants were compelled to work in Greek strawberry fields in highly abusive conditions. However, what is notable about Zoletic is the fact that the allegations of abuse related to work performed on high-profile construction projects commissioned by the Azerbaijani government in major cities – the capital, Baku, as well as the city of Mingachevir. Another notable feature of the case is its scale. The applicants involved in the quest for judicial relief before the domestic and Strasbourg courts were only a handful of the 700 migrant workers from the region estimated to have had their rights abused at various points between 2006 and 2009, making this one of the largest such cases to have been documented in Europe in recent years. These facts all contributed to the international attention the case attracted when it first broke.
The subsequent legal challenges pursued by the workers were reportedly frustrated by high levels of corruption – charges which have been documented by the Organized Crime and Corruption Reporting Project (OCCRP). The present contribution, however, will focus exclusively on the long-awaited judgment of the ECtHR, in which no such claims were addressed. It is argued that, in some ways, the impact of the Court’s findings in the case of Zoletic may be considered more limited than in previous landmark cases under Article 4 of the ECHR. At the same time, by consolidating certain general principles, the judgment can be considered an important step towards developing a settled body of jurisprudence under this provision, while also underlining the Court’s resolve in a politically sensitive case involving allegations of widespread human rights abuse.
According to the applicants, they were recruited at various points in time in Bosnia and Herzegovina by representatives of Serbaz Design and Construction LLC – a company registered in Azerbaijan. Serbaz representatives arranged for the entry of the applicants into Azerbaijan on tourist visas, but confiscated their passports upon arrival and set them up in dormitories where they were forced to reside in unsanitary conditions and deprived of basic life necessities (such as running water, heating, and access to medical care). The workers were subjected to constraints on their freedom of movement and made to comply with strict internal rules through fines and beatings, while no efforts were made by the Serbaz representatives to acquire work permits for them or to regularise their stay. Reports relied on by the applicants highlighted excessive working hours and wage deductions, while the applicants complained that, from May 2009 onwards, they were deprived of wages altogether. Their situation eventually came to the attention of several NGOs and international organisations active in the region, which provided direct humanitarian aid to the workers and drafted a report documenting the alleged ill-treatment (the ASTRA Report). One NGO – the Azerbaijani Migration Centre – reportedly contacted government authorities concerning the situation, but received no response.In October and November 2009, Serbaz arranged for the workers to return home, paying some of the wages they were owed.
The applicants subsequently sought to recover unpaid wages and obtain compensation for non-pecuniary damages in a civil claim lodged against Serbaz in the Sabail District Court of Azerbaijan. This claim, however, was dismissed on the basis that the workers were directly employed by Serbaz’s parent company, Acora Business Ltd., which according to an uncertified copy of the secondment agreement was still responsible for remuneration and other employment-related matters. The Azerbaijani court also held that the claim for non-pecuniary damages was unsubstantiated, based on the fact that various Azerbaijani authorities had found no evidence that Serbaz had violated the rights or freedoms of the workers. This decision was upheld in subsequent appellate and cassation proceedings.
In their initial complaint, the applicants had focused on the dismissal of their civil claim by the Azerbaijani courts, invoking Article 1 of Protocol No. 1 (protection of property) and Article 6 of the ECHR (right to a fair trial). Relying on the jura novit curia principle, however, the Court characterised the substance of the complaint as an issue of human trafficking and forced or compulsory labour under Article 4(2) of the ECHR – despite this not being a provision relied on by the applicants (§128) – and held that the complaint warranted examination under this provision alone (§138). In determining the precise scope of the complaint, the Court reiterated the three categories of positive obligations incumbent on states in cases involving Article 4 abuses. These are: (i) a duty to establish a legal and administrative framework to prohibit and punish treatment contrary to Article 4 ECHR; (ii) a duty to take operational measures to protect victims, or potential victims, of these prohibited forms of conduct; and (iii) a procedural duty to investigate scenarios that may amount to such conduct. According to the Court, the applicants’ in-substance complaint related exclusively to the third of these obligations, namely, a failure to institute and conduct an effective criminal investigation (§§132-133).
The subsequent assessment turned on whether the circumstances of the case raised an issue under Article 4(2), and, if so, whether the Azerbaijani authorities were made sufficiently aware so as to trigger a duty of investigation. On the first issue, the Azerbaijani government maintained that the applicants had not adequately substantiated the claim that they had been subjected to trafficking or forced labour, relying instead on ‘vague and general statements’ in both the domestic civil proceedings and in their submissions to the ECtHR (§143). The Court, while acknowledging that the applicants’ factual submissions were brief, determined that they nonetheless ‘pointed to several indicators of potential treatment contrary to Article 4 of the Convention’ (§160). Moreover, the applicants in both sets of proceedings had referred to documents that set out the substance of their grievances in greater detail, such as the ASTRA Report (prepared by a coalition of specialised NGOs), while additional materials brought to the attention of domestic authorities and the ECtHR further corroborated their claims. Together, the applicants’ factual submissions in both sets of judicial proceedings were considered to meet the lower threshold of an ‘arguable claim’ required for Article 4 ECHR to be applicable in complaints of a purely procedural nature (§§156, 169).
As to the second issue of whether this evidence was ‘sufficiently drawn’ to the attention of the relevant domestic authorities, the Azerbaijani government underlined the fact that the applicants had not filed criminal charges, relying instead on a civil claim brought against the wrong defendant. As such, not only had they failed to notify the prosecuting authorities of their grievances, but the applicants had also not exhausted the appropriate domestic remedy for complaints of treatment contrary to Article 4 (§§171). Again, the Court disagreed with the government’s assessment, finding that the applicants’ claim ‘was sufficiently and repeatedly drawn to the attention of the domestic authorities in various ways’, and that, as a result, the authorities ‘must have acted on their own motion by instituting and conducting an effective investigation, even though there was no formal criminal complaint made by the applicants themselves’ (§200). In addition to the applicants’ civil claim, the Court drew attention to information shared with various public authorities in Azerbaijan, including reports of Council of Europe monitoring bodies and complaint letters sent by the Azerbaijan Migration Centre (§§195-196). Particular emphasis was placed on the fact that the Prosecutor’s Office of Bosnia and Herzegovina had submitted requests for legal assistance to the Azerbaijani law enforcement authorities in the context of criminal proceedings instituted against some of Serbaz’s representatives there (§§197-198).
Having established that a procedural duty to investigate had indeed arisen, the Court concluded by considering whether it had been discharged by the Azerbaijani authorities in the present case. Under the procedural limb of Articles 2, 3 and 4 ECHR, the Court has developed a number of criteria for determining whether a state has met the qualitative threshold of ‘conducting an effective investigation’ (S.M. v. Croatia, §§313-320). However, in Zoletic, the Azerbaijani government failed to demonstrate that any formal investigation had been instigated in relation to the allegations of human trafficking and forced labour (§201). While the Anti-Trafficking Department had supposedly interviewed some of the Serbaz workers, the details of this examination were scant and the Department appeared to conclude that the issue essentially amounted to no more than the violation of internal disciplinary rules by some of the workers who had been sent home as a result (§205). In conclusion, the Court found Azerbaijan to have breached its procedural obligation under Article 4(2). The applicants were each awarded EUR 5,000 in non-pecuniary damages.
Zoletic arguably offers little in the way of contributions to the Court’s existing case law under Article 4 ECHR, at least in terms of purely jurisprudential developments. However, the case presented an opportunity for the Court to consolidate certain general principles relating to states’ positive obligations under Article 4 ECHR and to apply them to a new set of facts. In this sense, Zoletic can be understood as an important step towards establishing a settled body of case law under Article 4 and correcting some of the idiosyncratic features of the Court’s earlier jurisprudence. Some important features of the judgment in this regard include:
In S.M. v. Croatia, the Grand Chamber addressed several ambiguities of the Court’s earlier case law on this issue (see here, pp. 352-354), holding that the evidentiary threshold required to trigger both the procedural duty of investigation and the Court’s own assessment of whether this has been complied with is effectively the same: an ‘arguable claim’ or ‘prima facie evidence’ that the applicant was subjected to prohibited treatment under Article 4 (§324).Zoletic not only confirms this as the appropriate standard, but also demonstrates how, in applying it, the Court is willing to draw on a range of ‘corroborating information’ invoked by other parties (§165) to compensate for the kinds of challenges victims of trafficking and severe exploitation will often encounter in substantiating their claim (§145). While the Court must exercise caution in applying this stricter level of scrutiny in the context of procedural complaints (see para. 3 of the Joint Concurring Opinion of Judges O’Leary and Ravarani in S.M. v. Croatia), in cases such as Zoletic, where the government was presented with evidence of widespread human rights abuses from a range of sources, the lower evidentiary threshold applied in the Court’s assessment is arguably justified. The clarification that an ‘arguable claim’ does not necessarily need to assume the form of a criminal complaint is another welcome feature of the judgment (§200).
It is, nonetheless, regrettable that the Court’s findings were limited to a violation of the procedural limb of Article 4. The third-party intervention of the government of Bosnia and Herzegovina, together with the international reports cited by the Court, pointed to a systemic problem involving the exploitation of migrant workers on construction projects in Azerbaijan (§§118-120, 179). It might have been argued, therefore, that the Azerbaijani government had not implemented an appropriate legal and administrative framework for protecting foreign workers from trafficking and severe exploitation, potentially resulting in a more transformative judgment. This is not, however, a criticism of the Court, which was limited in its assessment by the nature of the complaint presented before it (§192), and indeed went to considerable lengths to make out any Article 4 complaint from the applicants’ original submissions (§131).
In a prior case involving migrant workers subjected to trafficking and forced labour (Chowdury and Others v. Greece), the Court struggled to come to terms with how these forms of treatment related to one another (for an analysis of the judgment’s shortcomings on definitional issues, see here). In Zoletic, however, the Court seeks to put this right. Drawing closely on its findings in Chowdury, the Court highlighted which aspects of the applicants’ experiences might amount to forced labour, defined in line with ILO Convention No. 29 as ‘work extracted under the menace of any penalty’ and for which the individual ‘has not offered himself voluntarily.’ For instance, in Zoletic, as in Chowdury, both physical and more subtle forms of coercion (such as methods of intimidation relying on the workers’ vulnerability as irregular migrants) were considered to potentially be ‘penalties’ used as threats to extract labour from the workers, while the abusive nature of the employment situation was deemed likely to nullify any prior consent (§§166-167). However, unlike in Chowdury, the Court in Zoletic applied the different elements of the international trafficking definition to examine how these could potentially be satisfied by the factual circumstances of the case (§168). This signals an increasingly concerted effort on the Court’s behalf to engage with the international legal definition of human trafficking in its reasoning.
A final noteworthy feature of this case can be found in its interstate dimension. In line with the Court’s first judgment on human trafficking under Article 4 ECHR (Rantsev v. Cyprus and Russia, §289), the Court reiterated in Zoletic that, in cross-border cases, an effective investigation requires cooperation with the authorities of other states in which relevant evidence or witnesses may be located (§191). The fact that the Azerbaijani authorities were made aware that criminal proceedings had been launched against Serbaz representatives in Bosnia and Herzegovina, but still failed to make any legal assistance requests of their own or attempt to identify implicated persons who were nationals or residents of Azerbaijan, was therefore an important indicator to the Court that no effective investigation had been instituted or conducted (§§206-207). It moreover signalled a failure in its own right to discharge the duty to ‘cooperate effectively’ with the authorities of Bosnia and Herzegovina to support the investigation of potential criminal conduct which occurred there (§191).
Beyond this, the government of Bosnia and Herzegovina played a pivotal role in allowing the Court to reach its finding of an Article 4 violation against Azerbaijan. Intervening as a third party to the case, the government supplied a range of documents which underlined how evidence of potential trafficking and forced labour had been brought to the attention of the Azerbaijani authorities (§§35-59). As highlighted by the Court, these third-party submissions ‘eliminate[d] certain factual omissions and obscurities in the submissions by the applicants […] relating to the issue of the alleged failure by the respondent State to comply with its positive obligations under Article 4 § 2 of the Convention’ (§135). The determination of the government of Bosnia and Herzegovina to hold the Azerbaijani government to account for failing to effectively secure the human rights of its citizens is undeniably a reassuring feature of the case.
Zoletic and Others v. Azerbaijan is therefore a significant, if not revolutionary, addition to the Court’s Article 4 jurisprudence. It is a judgment in which we see the Court draw on an ever-growing body of jurisprudence to consolidate some important general principles under this provision, while also providing a corrective on points of reasoning where it has equivocated in the past. Beyond this, as the first case of its kind, it establishes an important precedent for states cooperating with private entities in the delivery of public projects, highlighting the proactive nature of the duty to investigate alleged abuses in these scenarios.