The European Convention of Human Rights (ECHR) was drafted as a consequence of the Second World War. The Council of Europe visualised the protection of fundamental human rights and freedoms and made an investment in the establishment of democracies in Europe governed by the rule of law. Within the ECHR, Article 4 together with Articles 2 and 3 of the Convention, enshrines fundamental values of democratic societies. Amongst these values, there are liberties covered such as slavery, servitude, forced labour and compulsory labour. These concepts within human exploitation are as significant now as when the Convention was established, even “The Court notes that trafficking in human beings as a global phenomenon has increased significantly in recent years…” Dr Stoyanova also uses the landmark case of L.
E v Greece (2016) to portray his perspective that the European Court of Human Right needs to start “alleviating the dearth of judicial engagement with such structural problems” such as national legislation requirements to protect victims of trafficking. The ECHR itself demonstrates a need for specificity in regards to protection against human trafficking. This stance is supported by the judgement in the case of Rantsev v. Cyprus and Russia (2010), “The absence of an express reference to trafficking in the Convention is unsurprising.” The time and society which established the ECHR justifies its lack of concern to human trafficking to an extent. However, “sight should not be lost of the Convention’s special features or of the fact that it is a living instrument which must be interpreted in the light of present-day conditions.” This judgement is reinforcing Dr. V.
Stoyanova’s widely supported position that with the collapse of former Communist blocs and changes in immigration regulations amongst many other developments, ECHR requires renovation in regards to the exploitation of protections within human trafficking. The concept of slavery is one that somewhat establishes an outdated aspect to Article 4 of the ECHR. Article 4 states that “No one shall be held in slavery or servitude”. Unlike other clauses within the Convention, there is no provision for exceptions to this clause and under Article 15, section 2, no derogation from the above clause is permissible even in public emergency threatening the life of the nation. The EU Charter of Fundamental Human Rights under Article 5, works to reinforce the provisions regarding slavery and servitude within the ECHR but also establishes freedoms from trafficking in its own right as section 3 states “Trafficking in human beings is prohibited.” This is a clear update from Article 4 of ECHR “since human trafficking is a far more pressing problem in the modern world than slavery”. So it can also be argued that developments in regards to EU law can be seen to be establishing a necessary legal basis for dealing with human trafficking. In regards to solely slavery and servitude it can be seen within Article 4 that the court uses the definition of slavery as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised” within the Slavery Convention of 1926 when addressing the issue in cases regarding the subject.
Freedom from slavery is not a right as commonly infringed in the modern day as it once was. An example is the case of Siliadin v. France (2005) where the courts understood that the applicant had clearly been deprived of her personal autonomy, she was not held in slavery as there was no genuine right of legal ownership over her, thus reducing her to the status of an “object”. Cases in France, like the one above triggered the questions mentioned by Dr. V. Stoyanova, as to whether national authorities were meeting their obligations under Article 4. A case that contributed to this questioning was C.
N. and V. v.
France (2012) where the Court found that France had failed to meet its obligations under Article 4 of the Convention to combat forced labour due to the French court finding no violations of unremunerated domestic chores by two sixteen year old orphaned girls. It could be argued that the ECHR is a legal basis for dealing with exploitation of human beings because the European Court of Human Right can actively be seen pointing out when States do not have the necessary legislative provisions to protect victims of trafficking. The cases of C.N V v. France case as well as the case of C.N. v. the United Kingdom case are two examples of when the Court held that a State had inadequate provisions which did not afford practical and effective protection against treatment contrary to Article 4.
In this case, it was due to this absence of specific legislation criminalising domestic servitude and the investigation into the applicant’s allegations of domestic servitude had been ineffective. This is what is addressed by Dr V Stoyanova as he concludes one of his main points with his belief that Article 4 has more potential to protect victims which needs to be explored. Although, the courts have shown through previous cases such as Van der Mussele v.
Belgium (1983), that they can also address when there has been clearly no violation under Article 4. In a recent case concerning alleged trafficking of a minor girl, the Court also considered that there was not sufficient evidence indicating that she was held in slavery. Even though her father received a sum of money for her marriage the courts said this did not amount to a transfer of ownership. In this case, the courts can been seen to be modernising the idea of slavery and servitude, contemplating the common tradition of cultures in modern society.The concepts of slavery and servitude are sometimes distinguished not just because of the time relevance but also because of the narrow and specific legal definition of slavery. For Convention purposes “servitude means an obligation to provide one’s services that is imposed by the use of coercion, and is to be linked with the concept of slavery.” With regard to the concept of “servitude”, what is prohibited is “particularly serious form of denial of freedom”. The fundamental distinguishing feature between servitude and forced or compulsory labour within the meaning of Article 4 of the Convention lies in the victims’ feeling that their condition is permanent and that the situation is unlikely to change.
The Court underlined that domestic servitude is a specific offence, distinct from trafficking and exploitation and which involves a complex set of dynamics, involving both overt and more subtle forms of coercion, to force compliance.In interpreting the concepts such slavery and servitude and even forced labour and compulsory labour under Article 4 of the Convention, the Court relies on international instruments such as the 1926 Slavery Convention in regards to defining slavery,, ILO Convention No. 29 as the Forced Labour Convention. The various sources in this subject would make for the assumption that slavery and servitude have a clear and substantive legal basis when dealing with exploitation and trafficking. However as Dr. V.
Stoyanova claims the Siliadan case “judgment marked the first time when the European Court had the opportunity to clarify that art.4 imposes positive obligations upon states”. The lack of cases in the modern day regarding slavery and other concepts such as trafficking reinforce the belief that the ECHR needs more legislation in regards to the specifics of human exploitation and trafficking.
Article 4 of the ECHR also claims that “No one shall be required to perform forced or compulsory labour.” The Article then goes on to state that although there are no derogations in regards to slavery and servitude. There are two elements in the definition of forced labour derived from another convention which states; the work must be performed involuntarily and the requirement to do the work must be unjust or oppressive or the work itself involve avoidable hardship. An example of the ECHR legally dealing with the issue of forced labour and compulsory labour is within a case where the applicant was a practising lawyer and in this case the Court held that there had been no violation of Article in conjunction with Article 14 of the Convention. It noted that there was a significant difference between the obligations of professional groups of practising lawyers to other people. The rights and duties of working professionals are governed by specific laws and regulations that cannot be seen as “unjust or oppressive” therefore not regarded as forced labour.
Forced labour within the issue of trafficking and sexual exploitation is claimed to have a corresponding relationship with illegal immigration. Dr Stoyanova emphasises that there needs to be “A focus on the empirical evidence that many victims of human trafficking are also asylum-seekers.” Many of the cases regarding refugee status and trafficking result in a strike-out decision such as this case where action had already been taken to prevent human trafficking. The applicant claimed that removing her from the United Kingdom to Albania would expose her to a risk of being treated in breach of, among others, Article 4 of the Convention as she we be exposed to trafficking again.
The Court struck the application, in accordance with Article 37 of the Convention, as it found that the applicant and her daughter had been granted refugee status in the United Kingdom. Both cases and statute in regards to the ECHR can be seen protecting rights of refugees in regards to sexual exploitation. The EU have supported this protection and implemented the Directive 2011/36 on preventing and combating trafficking in human beings and protecting its victims. This piece of legislation is an example of the ECHR being modernised to be able to deal with human trafficking on a legal ground whilst combating trafficking issues within migration. Since the case of Rantsev case, the Court has ruled that trafficking in human beings, although not explicitly mentioned in the ECHR, falls within the scope of Article 4.
In this case, the Court laid down the obligations of governments under Article 4 in the modern climate of trade in humans. The judgement discussed “… criminal law measures to punish traffickers” as well as the Article 4 requirement “for member States to put in place adequate measures regulating businesses often used as a cover for human trafficking.” Stoyanova reviews this same case yet takes an alternative on what is required when dealing with trafficking in the modern day. Stoyanova rightly emphasises the “protection of victims” and for adequate measure regulating the national authorities to ensure the correct approach when dealing with human trafficking. Dr Stoyanova supports emphasis on obligation to protect the victim rather than to punish the criminal and explains how in L.
E v Greece neither obligation was efficiently executed. This stance that the ECHR does not create a legal basis for States dealing with trafficking is also shown in the Rantsev case where the Russian government was in breach of its procedural obligations and the Cypriot police did nothing to protect a man’s daughter from trafficking. The Court held that there had been a violation by Cypriot authorities of Article 2 of the Convention, as a result of their failure to investigate effectively the applicant’s daughter’s death. It is clear that ECHR at one point did not have any regulations in regards to the specially trafficking however, according to academics efficiency updates are being made to the interpretation of Article 4. Karen Reid claims that there is now an obligation to investigate situations of potential trafficking which has been read into Art.4.The significance of trafficking in persons is relevant as the ECHR makes no direct reference to the issue which means Article 4 in particular requires wider interpretation.
The Court argued as follows in Rantsev that in this present day “it unnecessary to identify whether the treatment about which the applicant complains constitutes ‘slavery’, ‘servitude’ or ‘forced and compulsory labour'”. The Court instead concludes that trafficking itself, within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention, falls within the scope of Article 4 of the Convention. If this is the case then the Courts can be seen actively enforcing a legal basis for dealing with trafficking. However, in the case if L.E v Greece there was an assertion made by authorities that victims need to explicitly articulate that they are being trafficked. Dr Stoyanova rightly describes this as “worrying”, mainly because of the issue in regards to migrants who could be vulnerable in these circumstances without some form of legal aid. “As the facts reveal, it is unlikely that L.
E. would have formulated a claim that she had been trafficked without the support of Nea Zoi”. This case judgement demonstrates that the issues within trafficking are not fully understood and the lack of sufficient sensitivity to the circumstance of a victims shows that the ECHR is possibly not the best foundation to start dealing with the human trafficking. Ultimately, the issue of trafficking is a contemporary crime which most likely was not in the views of the Convention drafters.
Alongside the lack of case law, the courts have had a difficult time for example, with the definitional challenges. The courts have made it their mission to ensure national authorities are using the ECHR as a legal basis to protect the freedoms of victims of trafficking. Dr V. Stoyanova would agree with the claim that since the Rantsev judgement the ECHR has shown it is not bound by codified notions or the intentions of drafters the ECHR is approached as a legal instrument and a modern document which ‘progressively incorporates changing European social and legal developments’ in safeguarding fundamental human rights and freedoms.