Irish Centre for Human Rights Blog

Guest post: Noemi Magugliani is an Irish Research Council Government of Ireland PhD scholar, and GLAN Law Legal researcher, at the Irish Centre for Human Rights. Noemi’s research examines the assessment of protection claims of male victims/ survivors of human trafficking in Italy and the United Kingdom.

On June 25th, 2020 Ten years after the European Court of Human Rights delivered its first judgment in a case involving trafficking in human beings in Ranstev v. Cyprus and Russia, acknowledging that trafficking fell into the scope of Article 4 of the European Convention on Human Rights, the Grand Chamber delivered its judgment in S.M. v. Croatia, the first case of internal trafficking where the victim is a national of the Member State against which the claim is brought. A Chamber of the First Section had already found a violation of Article 4 in its procedural limb in July 2018, but the Government of Croatia had requested the referral of the case to the Grand Chamber. Although the case law of the ECtHR under Article 4 has been scarce since Rantsev, with the judgment in S.M. the Court has filled a gap, clarifying not only that the concept of human trafficking relates to both national and transnational dimensions and can affect both nationals and non-nationals, but also elaborating on the State’s positive obligations and on the concept of ‘abuse of a position of vulnerability’. In this post, I will cover some of the issues raised by the case.

Brief summary of the facts

The applicant, S.M., is a Croatian woman born in 1990. She submitted that during the summer of 2011, she was physically and psychologically forced her into prostitution by T.M., who recruited her on Facebook presenting himself as a friend of her parents. She claimed that T.M. approached her and promised her that he would have found her a job, but that until then she should provide sexual services for money, and give him half of that money. As she feared T.M., who had physically punished her when she opposed him, she agreed to provide such sexual services.

While at first T.M. would drive her to meet clients in various places, soon afterwards T.M. had rented a flat where she continued providing sexual services. At the beginning of September 2011, S.M. was able to leave the flat and reach the house of a friend, M.I., to whom she explained what had happened. T.M. contacted the applicant via Facebook, and as S.M. did not respond, he started threatening her and her family. S.M. ignored these messages, and after a while T.M. stopped contacting her. In September 2012, T.M. contacted her again. As S.M. felt frightened for her own safety and the safety of her family, on 27 September 2012 she made a criminal complaint against T.M.

T.M., who had already been convicted in 2005 of the offence of procuring prostitution using coercion, was arrested and questioned by the police. On 6 November 2012, the State Attorney’s Office indicted T.M. on charges of procuring prostitution using coercion, as an aggravated offence of procuring prostitution. In the meantime, the applicant was officially given the status of victim of human trafficking by the Office for Human and Minority Rights of the Government of Croatia, and received psycho-social support.

On 15 February 2013, the Municipal Court acquitted T.M. on the grounds that although it had been established that he had organised a prostitution ring into which he had recruited the applicant, it had not been established that he had forced or pressured her into prostitution. Although the State Attorney’s Office lodged an appeal against the first-instance judgment, the County Court dismissed the appeal, and the applicant’s subsequent constitutional complaint with the Constitutional Court was deemed inadmissible.

Scope and admissibility of the case

The Government of Croatia raised preliminary objections concerning the scope of the case before the Court, as well as concerning the admissibility of the complaint. The Court dismissed the Government’s objection that the applicant did not rely in her application on Article 4 of the Convention, but rather on Articles 3 and 8, invoking the jura novit curia principle, according to which the Court is not bound by the legal grounds adduced by the applicant and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant, and balancing it against the ne ultra petitum principle, bearing in mind the purpose of the Convention.

Addressing the question of the material scope of Article 4 of the Convention, the Court held that all situations where the constituent elements of the international definition of trafficking (action, means, purpose) are present are characterisable as issues of human trafficking under Article 4. This also includes instances of internal trafficking, as well as of trafficking of citizens within national borders, and is a clarification to be welcomed. The Court further held that forced prostitution, irrespective of whether related to a human trafficking context or not, may fall under Article 4, and in particular under the notion of ‘forced or compulsory labour’. The concurring opinion of Judge Pastor Vilanova criticises the Court’s approach as too ambiguous in this respect, and expands the issue of forced prostitution as forced labour arguing that “exploitation of prostitution … should be presumed to be contrary to Article 4 of the Convention [save the] exception … [of] prostitution entered into with free, informed and express consent, which cannot be characterised as forced labour” (para 7). A similar issue is raised in the joint concurring opinion of Judges O’Leary and Ravarani, who criticise the judgment for failing to provide a clear answer on whether the domestic authorities should have been investigating human trafficking, forced prostitution or sexual exploitation generally. If, for the purpose of the application of Article 4, this is irrelevant in terms of procedural obligations, it creates rather than solves doubts at domestic level. Once again, the Court missed an opportunity to provide clarifications on the exact scope of Article 4 and on the boundaries of human trafficking, forced labour, and forced prostitution – as some had already noted in the context of Rantsev.

A significant point of departure from previous case law is the evaluation of the Court of whether the circumstances of the case gave rise to an issue under Article 4. Indeed, the Court departed from L.E. v. Greece, where it proceeded under the assumption that the definitional threshold of Article 4 was met and the provision was applicable since the Greek authorities had recognised the appellant as a victim of human trafficking. In S.M., the Court held that “administrative recognition of the status of a potential victim of human trafficking cannot be taken as recognition that the elements of the offence of human trafficking have been made out” and that, therefore, the Court “cannot attach decisive importance to the fact that the applicant obtained administrative recognition of the status of a victim of human trafficking” (paras 322-323). It was deemed necessary to establish “whether … the applicant made an arguable claim or whether there was prima facie evidence of her having been subjected to such prohibited treatment” (para 324). Considered the facts as submitted by the applicant and as laid out in domestic proceedings, the Court concluded that the applicant made an arguable claim and that there was prima facie evidence that she has been the victim of treatment contrary to Article 4. Although it is clear that the recognition of a person as a victim of trafficking cannot be understood as proof of the offence, in its criminal law dimension, it is disappointing that the Court did not make explicit reference to the fact that the identification of a person as a victim of trafficking shall be regarded as sufficient to trigger the State’s responsibility to proactively investigate the circumstances in light, and on the basis of anti-trafficking legislation.

Consent and abuse of a position of vulnerability

In the present case, the Court found that the applicant’s personal situation undoubtedly suggested that she belonged to a vulnerable group and that T.M. was “capable of assuming a dominant position over her and abusing her vulnerability for the purpose of exploitation and prostitution” (para 329). In reaching this conclusion, the Court highlighted her personal situation and her problematic relationship with her family, as well as elements of fraud and deception that are frequently used by traffickers, “as when victims are led to believe that an attractive job awaits them rather than the intended exploitation” (para 158), that were also evidently used by T.M. during the recruitment process. Significantly, the Court also re-stated that ‘abuse of vulnerability’ constitutes in itself a ‘mean’, as it was recognised in Chowdury and Ors v. Greece. The Court indeed stressed the ‘means’ element, which the Government had argued did not exist, drawing attention to the modality of recruitment used by T.M. – the alleged promise of employment, S.M.’s position of vulnerability, the statement that he lent money to S.M., and his use of force against the applicant.

Positive obligations under Article 4

As the applicant’s complaint was of a procedural nature, the Court went on to deal with the complaint of a deficient response by the domestic authorities to her allegations of human trafficking. The Court analysed in particular whether Croatia had properly investigated and subjected to careful scrutiny the applicant’s allegations that she had been a victim of trafficking.

The Court noted that the authorities reacted promptly to the applicant’s allegations against T.M., a requirement that follows from the authorities’ procedural obligations. Yet, the Court noted that there was no indication that the prosecuting authorities made any effort to investigate the circumstances of the initial contact between T.M. and S.M., and never sought to inspect the applicant’s or T.M.’s Facebook accounts to ascertain the nature of their exchanges, even when S.M.’s statement indicated that T.M. had threatened her using that platform. The Court also noted that the only witness with whom the authorities engaged was M.I., and that no effort was made to contact the owner of the flat where S.M. lived with T.M., nor to identify other potential witnesses. In the view of the Court, these elements suggest that the authorities did not effectively investigate all relevant circumstances of the case, and instead relied almost entirely on the applicant’s statement. In light of existing research on the hardships faced by victims of trafficking in credibility assessment processes, the over-reliance on victim statements in investigations and criminal proceedings is particularly problematic, and the approach of the Court on the issue is surely to be welcomed and signals the increasing recognition  by the Court of victim’s rights in criminal proceedings and its engagement with the worrying tendency of States to disregard victims’ trauma in legal proceedings, in and beyond the specific context of trafficking.

On June 25th, 2020 Ten years after the European Court of Human Rights delivered its first judgment in a case involving trafficking in human beings in Ranstev v. Cyprus and Russia, acknowledging that trafficking fell into the scope of Article 4 of the European Convention on Human Rights, the Grand Chamber delivered its judgment in S.M. v. Croatia, the first case of internal trafficking where the victim is a national of the Member State against which the claim is brought. A Chamber of the First Section had already found a violation of Article 4 in its procedural limb in July 2018, but the Government of Croatia had requested the referral of the case to the Grand Chamber. Although the case law of the ECtHR under Article 4 has been scarce since Rantsev, with the judgment in S.M. the Court has filled a gap, clarifying not only that the concept of human trafficking relates to both national and transnational dimensions and can affect both nationals and non-nationals, but also elaborating on the State’s positive obligations and on the concept of ‘abuse of a position of vulnerability’. In this post, I will cover some of the issues raised by the case.

Brief summary of the facts

The applicant, S.M., is a Croatian woman born in 1990. She submitted that during the summer of 2011, she was physically and psychologically forced her into prostitution by T.M., who recruited her on Facebook presenting himself as a friend of her parents. She claimed that T.M. approached her and promised her that he would have found her a job, but that until then she should provide sexual services for money, and give him half of that money. As she feared T.M., who had physically punished her when she opposed him, she agreed to provide such sexual services.

While at first T.M. would drive her to meet clients in various places, soon afterwards T.M. had rented a flat where she continued providing sexual services. At the beginning of September 2011, S.M. was able to leave the flat and reach the house of a friend, M.I., to whom she explained what had happened. T.M. contacted the applicant via Facebook, and as S.M. did not respond, he started threatening her and her family. S.M. ignored these messages, and after a while T.M. stopped contacting her. In September 2012, T.M. contacted her again. As S.M. felt frightened for her own safety and the safety of her family, on 27 September 2012 she made a criminal complaint against T.M.

T.M., who had already been convicted in 2005 of the offence of procuring prostitution using coercion, was arrested and questioned by the police. On 6 November 2012, the State Attorney’s Office indicted T.M. on charges of procuring prostitution using coercion, as an aggravated offence of procuring prostitution. In the meantime, the applicant was officially given the status of victim of human trafficking by the Office for Human and Minority Rights of the Government of Croatia, and received psycho-social support.

On 15 February 2013, the Municipal Court acquitted T.M. on the grounds that although it had been established that he had organised a prostitution ring into which he had recruited the applicant, it had not been established that he had forced or pressured her into prostitution. Although the State Attorney’s Office lodged an appeal against the first-instance judgment, the County Court dismissed the appeal, and the applicant’s subsequent constitutional complaint with the Constitutional Court was deemed inadmissible.

Scope and admissibility of the case

The Government of Croatia raised preliminary objections concerning the scope of the case before the Court, as well as concerning the admissibility of the complaint. The Court dismissed the Government’s objection that the applicant did not rely in her application on Article 4 of the Convention, but rather on Articles 3 and 8, invoking the jura novit curia principle, according to which the Court is not bound by the legal grounds adduced by the applicant and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant, and balancing it against the ne ultra petitum principle, bearing in mind the purpose of the Convention.

Addressing the question of the material scope of Article 4 of the Convention, the Court held that all situations where the constituent elements of the international definition of trafficking (action, means, purpose) are present are characterisable as issues of human trafficking under Article 4. This also includes instances of internal trafficking, as well as of trafficking of citizens within national borders, and is a clarification to be welcomed. The Court further held that forced prostitution, irrespective of whether related to a human trafficking context or not, may fall under Article 4, and in particular under the notion of ‘forced or compulsory labour’. The concurring opinion of Judge Pastor Vilanova criticises the Court’s approach as too ambiguous in this respect, and expands the issue of forced prostitution as forced labour arguing that “exploitation of prostitution … should be presumed to be contrary to Article 4 of the Convention [save the] exception … [of] prostitution entered into with free, informed and express consent, which cannot be characterised as forced labour” (para 7). A similar issue is raised in the joint concurring opinion of Judges O’Leary and Ravarani, who criticise the judgment for failing to provide a clear answer on whether the domestic authorities should have been investigating human trafficking, forced prostitution or sexual exploitation generally. If, for the purpose of the application of Article 4, this is irrelevant in terms of procedural obligations, it creates rather than solves doubts at domestic level. Once again, the Court missed an opportunity to provide clarifications on the exact scope of Article 4 and on the boundaries of human trafficking, forced labour, and forced prostitution – as some had already noted in the context of Rantsev.

A significant point of departure from previous case law is the evaluation of the Court of whether the circumstances of the case gave rise to an issue under Article 4. Indeed, the Court departed from L.E. v. Greece, where it proceeded under the assumption that the definitional threshold of Article 4 was met and the provision was applicable since the Greek authorities had recognised the appellant as a victim of human trafficking. In S.M., the Court held that “administrative recognition of the status of a potential victim of human trafficking cannot be taken as recognition that the elements of the offence of human trafficking have been made out” and that, therefore, the Court “cannot attach decisive importance to the fact that the applicant obtained administrative recognition of the status of a victim of human trafficking” (paras 322-323). It was deemed necessary to establish “whether … the applicant made an arguable claim or whether there was prima facie evidence of her having been subjected to such prohibited treatment” (para 324). Considered the facts as submitted by the applicant and as laid out in domestic proceedings, the Court concluded that the applicant made an arguable claim and that there was prima facie evidence that she has been the victim of treatment contrary to Article 4. Although it is clear that the recognition of a person as a victim of trafficking cannot be understood as proof of the offence, in its criminal law dimension, it is disappointing that the Court did not make explicit reference to the fact that the identification of a person as a victim of trafficking shall be regarded as sufficient to trigger the State’s responsibility to proactively investigate the circumstances in light, and on the basis of anti-trafficking legislation.

Consent and abuse of a position of vulnerability

In the present case, the Court found that the applicant’s personal situation undoubtedly suggested that she belonged to a vulnerable group and that T.M. was “capable of assuming a dominant position over her and abusing her vulnerability for the purpose of exploitation and prostitution” (para 329). In reaching this conclusion, the Court highlighted her personal situation and her problematic relationship with her family, as well as elements of fraud and deception that are frequently used by traffickers, “as when victims are led to believe that an attractive job awaits them rather than the intended exploitation” (para 158), that were also evidently used by T.M. during the recruitment process. Significantly, the Court also re-stated that ‘abuse of vulnerability’ constitutes in itself a ‘mean’, as it was recognised in Chowdury and Ors v. Greece. The Court indeed stressed the ‘means’ element, which the Government had argued did not exist, drawing attention to the modality of recruitment used by T.M. – the alleged promise of employment, S.M.’s position of vulnerability, the statement that he lent money to S.M., and his use of force against the applicant.

Positive obligations under Article 4

As the applicant’s complaint was of a procedural nature, the Court went on to deal with the complaint of a deficient response by the domestic authorities to her allegations of human trafficking. The Court analysed in particular whether Croatia had properly investigated and subjected to careful scrutiny the applicant’s allegations that she had been a victim of trafficking.

The Court noted that the authorities reacted promptly to the applicant’s allegations against T.M., a requirement that follows from the authorities’ procedural obligations. Yet, the Court noted that there was no indication that the prosecuting authorities made any effort to investigate the circumstances of the initial contact between T.M. and S.M., and never sought to inspect the applicant’s or T.M.’s Facebook accounts to ascertain the nature of their exchanges, even when S.M.’s statement indicated that T.M. had threatened her using that platform. The Court also noted that the only witness with whom the authorities engaged was M.I., and that no effort was made to contact the owner of the flat where S.M. lived with T.M., nor to identify other potential witnesses. In the view of the Court, these elements suggest that the authorities did not effectively investigate all relevant circumstances of the case, and instead relied almost entirely on the applicant’s statement. In light of existing research on the hardships faced by victims of trafficking in credibility assessment processes, the over-reliance on victim statements in investigations and criminal proceedings is particularly problematic, and the approach of the Court on the issue is surely to be welcomed and signals the increasing recognition  by the Court of victim’s rights in criminal proceedings and its engagement with the worrying tendency of States to disregard victims’ trauma in legal proceedings, in and beyond the specific context of trafficking.