ECtHR finds ineffective investigation into forced prostitution in breach of prohibition on slavery and forced labour
The Grand Chamber of the European Court on Human Rights (ECtHR) has found that authorities in Croatia breached the prohibition of slavery and forced labour (Article 4 of the European Convention on Human Rights) for failure to respond adequately to an allegation of forced prostitution.
The case was brought by SM, a Croatian woman who claimed to have been the subject of human trafficking and forced prostitution. She lodged a criminal complaint in September 2012 alleging that a former police officer had forced her into prostitution over several months in 2011. A preliminary investigation had established that the accused had a previous conviction for rape and for procuring prostitution using force. By the end of 2012, the accused was charged and SM was given the status of a victim of trafficking. The accused, however, was acquitted of forced prostitution as SM’s testimony was considered to be incoherent and unreliable, and she lacked significant evidence to prove the accused forced her into prostitution. An appeal by the State Attorney’s Office was dismissed in January 2014, while a constitutional complaint by the applicant was declared inadmissible in June of the same year.
In 2018, the Chamber of the ECtHR remarked that this case was the first occasion on which it had to consider whether Article 4 of the Convention was applicable to the trafficking and exploitation of women for the purposes of prostitution. The Chamber concluded that both fell within the scope of Article 4 and, as a result, ruled that the applicant’s human rights had been violated. The case was referred to the Grand Chamber in December 2018.
The Grand Chamber used the opportunity to clarify previous case law on the scope of application of Article 4 of the Convention. It said that human trafficking, without defining it, does come within the scope of Article 4’s applicability as it refers to three concepts: slavery, servitude, and forced labour. The Court said that international law must be used as guidance when dealing with those concepts. The Court contended that the interpretation of human trafficking used in international law compliments the scope of Article 4.
The Court further made clear that the concept of human trafficking covers both national and transnational trafficking in human beings, irrespective of whether or not it is connected with organised crime. It also clarified that the notion of ‘forced or compulsory labour’ under Article 4 ECHR is intended to protect against instances of serious exploitation, such as forced prostitution, irrespective of whether, in the particular circumstances of a case, they were related to the specific human trafficking context.
The Court justified that the issues raised by the applicant could be examined under Article 4 for two reasons; firstly, the case law “tended to apply Article 4 to issues related to human trafficking” and secondly, this allows the Court to place the alleged abuses “into their general context, namely that of trafficking in human beings and sexual exploitation.” The Court noted in particular that certain characteristics of trafficking and forced prostitution had been present in the applicant’s case, such as abuse of power over a vulnerable individual, coercion, deception and harbouring. In particular, the applicant’s alleged abuser was a policeman, while she had been in public care from the age of 10, and he had first contacted her by Facebook, leading her to believe that he would help her to find a job.
The Court ruled that SM’s situation triggered the domestic authorities’ positive obligation to safeguard her rights under Article 4 by conducting a thorough investigation of her criminal complaint. This positive obligation involves a duty to institute and conduct an investigation capable of leading to the establishment of the facts and of identifying and – if appropriate – punishing those responsible. In order to do that, the authorities had to take whatever reasonable steps they could to collect evidence.
The Court found that while the Croatian Government had reacted promptly, it failed to follow obvious lines of enquiry; in particular, it failed to interview all potential witnesses. The Government approached the case as her word against the accused’s and this thwarted their ability to determine the true nature of the relationship between the two of them. As a result, the Court was not satisfied that the State had an adequate legal framework in place to handle a criminal complaint of this nature and thus a finding of a violation of Article 4 of the Convention was determined.
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