Friday, 8 January 2010

Landmark Judgment on Human Trafficking

Yesterday, the European Court passed a landmark judgment on human trafficking in the case of Rantsev v. Cyprus and Russia. The case concerned the death of Oxana Rantseva and was brought by her father. Oxana moved from Russia to Cyprus and started to work as a 'cabaret artiste', as one of thousands of women coming to Cyprus. It was widely known that these 'artistes' were in practice mostly working as prostitutes. Within a few weeks she left the place where she worked, but was traced by her employer who brought her to the police with the aim of haiving her detained and extradited, so that he could employ someone else. The police noted that she was not illegally staying in Cyprus, but had a work permit and made her go back with her employer. Later that night, she tried to escape from the apartment where her employer was keeping her and in doing so fell of a balcony and died. In spite of the mysterious circumstances of her death, the context of possible human trafficking was never looked into by the authorities.

The Court found, unanimously, that trafficking in human beings, although not epxlicitly mentioned in the ECHR, fell within the scope of Article 4 (prohibition of slavery, servitude and forced labour). This is a rarely used Convention provision, on which there is only one earlier Court judgment in the context of human trafficking: the case of Siliadin v. France ( 73316/01) of 2005, in which the Court looked into a situation of girl from Africa held in servitude as a housemaid in France. That judgment focused only the failing criminal law framework in place at the time. In the current case of Rantsev the Court took a much more thorough look at the whole issue of trafficking and clarified the obligations of states in this respect. An additional striking feature in this case is that the complaint was lodged against two state parties. Applying its case law under Articles 2 and 3 ECHR by analogy, the Court held the following (para. 284):

The Court considers that the spectrum of safeguards set out in national legislation must be adequate to ensure the practical and effective protection of the rights of victims or potential victims of trafficking. Accordingly, in addition to criminal law measures to punish traffickers, Article 4 requires member States to put in place adequate measures regulating businesses often used as a cover for human trafficking. Furthermore, a State’s immigration rules must address relevant concerns relating to encouragement, facilitation or tolerance of trafficking.
Whereas in Siliadin, the Court had focused on the positive obligation to penalise and prosecute acts of slavery, servitude or forced labour, it broadened its approach here - in line with explicitly mentioned other internatinoal instruments on human trafficking such as the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (“the Palermo Protocol”), supplementing the United Nations Convention against Transnational Organised Crime - to two other aspects: positive obligations to prevent trafficking and to protect victims. If the authorities are aware of a situation of human trafficking or of the real risk that an individual will get into such a situation, it is obliged to take appropriate measures. This includes a procedural obligation to investigate situations of potential human trafficking and to cooperate with the investigations of other state parties. This goes for both states of origin, transit and destination.

Cyprus had violated Article 4 in mutiple respects, including the obligation to operate an effective administrative framework to prevent trafficking in general and the obligation to take protective measures in the case of Ms Rantseva in particular. Russia had violated Article 4 ECHR by failing to investigate the alleged trafficking and its potential start in Russia itself, once the Russian authorities had become aware of Ms. Rantseva's case.

In addition, under Article 2 ECHR (right to life) the Court found no violation of article 2 in its substantive aspect, since the chain of events leading to Oxona's death could not have been foreseen by Cyprus. The investigation, however, contained so many flaws that many of the aspects of the case remained opaque. Nor had Oxona's father sufficiently been involved in the investigation. The Court thus found a procedural violation of Article 2. As to Russia's responsiblity, the Court emphasized that the corollary of the duty to secure evidence from other relevant countries during the investigation, had as a corollary that such countries should, within their means and competence render such assistance if requested. This is also a novel clarification of the Convention. In this case, Russia had done more than it was expected to, whereas Cyprus had not even asked Russia for assistance. Thus no violation under Article 2 was found against Russia.

Finally, the Court found that Cyprus had violated Ms. Rantseva's right to liberty. This was obvious concerning her detention at the police station, even if short, for which there was no legal basis. But the Court also found, that the forced stay of Oxona Rantseva at the apartment violated Article 5, since the authorities had failed to observe their positive obligation to protect her from arbitrary detention by a third party. In this case, within a known context of the cabaret artistes situation on Cyprus and her particular case, and by handing her over to her employer instead of letting her go by herself from the police station, they had acquiesced in her loss of liberty. The fact that she did not openly protest was irrelevant for the Court.

The judgment not only represents a milestone in the combat against human trafficking, but more generally elucidates state obligations in the battle against transational crime. It is commendable that the Court through its verdict offers new yardsticks to assess state performance in this respect.

To read the report by Interights on the case click here. This NGO also submitted a third pary submission to the Court, which can be read here. Even the Wall Street Journal reports on the case; click here.


Tobias Thienel said...

Thank you for this report. I thought the most remarkable passage in the judgment was at para. 289, where the Court imposes a duty of effective cooperation with any investigation of human trafficking by one Contracting State on all other Contracting States. But I missed para. 284 and its somewhat sweeping requirements on the regulation of sensitive businesses and immigration. So thank you for pointing that out.

Just one question: I was under the impression that the Court had applied Article 5 in its negative aspect, after holding that the police had actively cooperated and thus acquiesced in the deprivation of liberty. After all, if the Court had relied instead on the positive obligation of protection, it could not have found a violation simply because the deprivation of liberty had not been "lawful" (Article 5(1)). Do you agree?

Antoine Buyse said...

Dear Tobias,

As to the deprivation of liberty, there is a difference between the detention at the police station and the acquiescence in detention by the third party. For the latter, a positive obligation to protect individuals against arbirtrary detention by third parties is engaged (para. 319).

Antoine Buyse

Tobias Thienel said...

Dear Antoine,

Thank you for your pointer to para. 319. I have to say I find the reference to positive obligations there somewhat puzzling. Certainly, the words "in particular" do not help much, and the precedent cited makes no reference to the State's positive obligations.

But my real problem with the invocation of positive obligations is a constructive one: in positive obligations cases, the lawfulness of the private conduct complained of generally does not matter; the 'established by law' clause as in Article 8(2) or the word 'lawful' in Article 5(1) do not apply. For instance, in complaints against noise from Heathrow airport (Powell and Rayner; Hatton and Others), it is irrelevant if that noise is lawful or not. Certainly, there is no violation of a positive obligation simply because a private person had no lawful authority to do what it did. What matters is the severity with which private action impacts on the Convention right at issue.

In Rantsev, the Court held, even as regards the detention of the applicant's daughter in the flat, at the behest of M.A., that this detention was unlawful and Article 5 had therefore been violated. Also, in a positive obligations case, one would have accepted analysis to the effect that the police had failed to do something. In holding instead that the police had actively acquiesced in the detention by M.A., the Court goes well beyond that, and to my mind suggests an attribution argument (cf. also Costello-Roberts v. UK).

Admittedly, the (short) lawfulness analysis could also be directed at the severity of the interference by the private actor, and hence at whether there was a positive obligation, on the facts of the case, to step in. The argument in that respect would be that the State must step in against any arbitrary detention, and that the arbitrariness of this detention therefore implied a violation of this positive aspect of Article 5.

But, on the whole, I find this passage far from clear. Indeed, the words 'in particular' in para. 319 may well suggest that the Court was not entirely sure, either. In that sense, Rantsev may be like the plethora of Article 8 cases in which the Court has declined to decide if Article 8 applied in its positive or its negative aspect.

expert witness said...

Once separated a trafficker may sell the individual to another or force them to work off "travel debt" such as transportation, food, and housing. This debt is at astronomical interests rates, which accumulate daily, and can never be paid off.