The European Court of Human Rights’ (ECtHR) ineffective approach to trafficking cases fails to protect those most at risk: the victims and survivors of human trafficking. The ECtHR must prioritise reforming its case law to protect trafficking victims across Europe.
This article will examine the need for the regional court to apply a consistent and effective analytical framework to human trafficking cases through critical analysis of the ECtHR’s approach in the recent cases Rantsev v. Russia and L.E. v. Greece.
THE COURT’S APPROACH IN RANTSEV V. RUSSIA: A STEP BACKWARDS?
In the case of Rantsev, a Russian national was trafficked into prostitution, subjected to sexual exploitation, and later found dead in Cyprus. Her father argued before the ECtHR that neither Russia nor Cyprus had protected his daughter from trafficking. The ECtHR recognised that the crime of trafficking is subject to article 4 of the European Convention on Human Rights (ECHR), and therefore the Court had jurisdiction over his claim.
In the course of its decision, the ECtHR imposed on states the obligation to provide a legal and administrative framework to penalise and prosecute traffickers and to put measures in place to combat human trafficking and to protect victims. The Court held that, in consideration of these affirmative obligations, by failing to carry out a proper investigation of the Russian woman’s trafficking, Cyprus violated the ECHR.
Additionally, in Ranstev, the ECtHR emphasized states’ obligation to take “operational measures” as soon the authorities become aware of human trafficking. Here, consequently, by not taking such measures—although the circumstances in the case clearly gave rise to a suspicion that the victim was at immediate risk of trafficking—the Court found that the Cypriot police failed to fulfil this obligation as well.
Finally, the ECtHR also held that states must investigate such cases and must also “cooperate effectively” with other states concerned with the investigation. Trafficking is not “confined to the domestic arena,” the Court said
This judgment was the first time the ECtHR officially recognised trafficking as a violation of the ECHR. However, the Court failed to appreciate the important principle that trafficked victims who commit offences as a result of their trafficking should not be held criminally liable. This failure on the part of the ECtHR is a step backwards, as victims are generally compelled under duress to commit these crimes. The Court should have explicitly held that states must ensure that such persons are not punished.
This lack of understanding of the effects of trafficking on victims shows that the ECtHR’s focus is on state accountability more broadly rather than on protecting trafficked victims.
Another shortcoming of the ECtHR’s approach in Rantsev is that it failed to address the exploitation association with human trafficking outside of sex trafficking. The Court could have used this case to develop a framework for trafficking cases that considered all types of exploitation to which victims are subjugated.
Consequently, although the ECtHR’s decision in Rantsev is important, because it actively affirms that human trafficking crimes are subject to the ECHR, its shortcomings lessen its usefulness to protecting victims in future cases of human trafficking.
THE ECTHR’S LIMITED UNDERSTANDING OF TRAFFICKING IN L.E. V. GREECE
In L.E., the ECtHR considered the case of a Nigerian woman who was trafficked into prostitution in Greece. With the support of an NGO, and after drawn-out proceedings, the Greek courts officially recognised the woman as a victim and survivor of human trafficking for the aim of sexual exploitation. The woman argued that the Greek authorities should not have made her wait nine months before granting her the status of a trafficking victim, which comes with certain protections.
The ECtHR ultimately held, though, that Greece had met its legal and regulatory obligations under the ECHR, because it already had legislation criminalising trafficking and protecting victims. This was problematic, however, as the Court then did not seem to believe it needed to invest in a detailed assessment of trafficking in Greece.
For instance, the ECtHR failed to consider a number of reports published by international bodies raising concerns regarding the proliferation of trafficking and its mishandling by national authorities in Greece. If the ECtHR had properly considered these reports, it would have actually found Greece in breach of its obligations to establish an effective framework with which to address trafficking crimes, as it did in Rantsev.
Consequently, the ECtHR’s approach in L.E. was ineffective, failing to consider relevant reports directly applicable to Greece’s substantive compliance with the ECHR. The decision here is also inconsistent with the ECtHR’s earlier judgment in Rantsev, in which the Court did directly address ineffective domestic legal frameworks for responding to instances of human trafficking.
CONSISTENTLY INCONSISTENT JUDICIAL ANALYSIS
Later on, though, in Chowdury v Greece the ECtHR departed from its L.E. approach by concentrating not only criminalising but also on the protection of victims, further illustrating the inconsistency in the Court’s judgments in trafficking cases.
Additionally in this case, the ECtHR put the onus on the victim to alert the public authorities that they have been trafficked, which is concerning and contrary to the ECtHR’s holding in Rantsev, where the Court held the obligation to take operational measures was triggered once authorities are aware or ought to have been aware of the situation—not just after a victim’s explicit admission.
The facts in L.E. indicate that the authorities ought to have known that the victim was trafficked; therefore, they should have taken steps to protect the victim even without her own admission. Consequently, the ECtHR’s flip-flopping approach to human trafficking cases is not only inconsistent but also ineffective in the long run.
The Court fails to protect victims by failing to establish a consistent legal framework for trafficking cases, placing the burden of asking for help on survivors when states should be actively preventing and prosecuting trafficking in accordance with the ECHR regardless.
Furthermore, the ECtHR failed to consider appropriate gender perspectives in both Rantsev and L.E. Scholar Alexandra Timmer argues that the Court should not ignore the gender aspect in cases like Rantsev “where a large group of women is systematically exploited”.
Considering gender-based inequalities in trafficking cases is significant to protect women, as they compose “the vast majority of the detected victims of trafficking for sexual exploitation…and 35 percent of the victims trafficked for forced labour.”
The ECtHR’s recent analyses, especially taken together, are ineffective as they fail to show a comprehensive understanding of the effects of human trafficking on victims and are inconsistent with each other. In light of the number of trafficking cases rising across Europe, the ECtHR must reform its analytical framework on this issue and provide a consistent approach to human trafficking cases. This is crucial to combat human trafficking, protect its victims, and ensure that states adapt their domestic legal frameworks to new and varied forms of trafficking.
Aya is a final year LLB student at Middlesex University. As a person who fled the war in Iraq, she has always been passionate about human rights and international affairs. Consequently, she chose to study UK and European Human Rights in her second year of LLB. She will also start the LPC with LLM in Human Rights in Septemeber 2020. Her goal is to practice human rights in the future.