THE COMPLEXITIES OF ARTICLE 4 ECHR

In October 2021, the European Court of Human Rights concluded its latest case pertaining to human trafficking under the scope of article 4 of the European Convention on Human Rights (the ECHR). It constitutes a long-waited judgment of the Court, beginning in 2009, which shows the complex nature of human trafficking.

In general, the Court has decided many cases concerning human trafficking under article 4, and, specifically, regarding forced labour. In Rantsev v. Cyrpus and Russia, it characterised human trafficking as a crime that “by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership. It treats human beings as commodities to be bought and sold”. Article 4 however is complex, the interpretation of which has created a persistent definitional challenge.

In Zoletic and Others v. Azerbaijan, the Court addressed the issue of forced or compulsory labour under article 4(2) of ECHR. The first definitional approach from the Court was considered in  Van der Mussele v. Belgium, a judgment where the Court had recourse to the ILO Convention No. 29 regarding forced labour. The problem with the most recent of the Court’s case-law is the lack of a clear definition and interrelation between the concepts of human trafficking and forced labour. Therefore, the question that arises through Zoletic is whether it provides a further clarification of the conceptual apparatus of article 4 ECHR regarding forced labour or, if it is just another adjustment to the long list of human trafficking judgments.

THE COURT’S DECISION

The case before the Court concerned the alleged failure by the respondent state to conduct an effective investigation regarding the applicants’ complaints that they had been victims of forced labour and human trafficking.  The failure of the authorities to protect the applicants’ interests led to a violation of article 4(2) and 6 of the ECHR and article 1 of Protocol No.1 ECHR. Specifically, Zoletic concerned the complaint of 33 nationals from Bosnia and Herzegovina who were recruited in Azerbaijan as construction workers. During their stay they alleged that they became victims of forced labour as they had no work permits, their passports had been taken from them, they lived in unsanitary conditions, and they were deprived of their wages.

The first claim that was raised by the applicants in the Sabail District Court in Azerbaijan, was dismissed, and a report (ASTRA Report) that described the restrictions and the maltreatment of the workers was not accepted. Later, in January 2021, the Appeals Chamber of the Court of Bosnia and Herzegovina upheld the first-instance judgment due to lack of evidence that could prove the case of human trafficking.

Subsequently, the applicants complained to the Court that they had been victims of forced labour and human trafficking relying on article 6 ECHR and article 1 of Protocol No. 1 ECHR.

The Court found that, based on the circumstances, it was appropriate to examine the relevant complaints under the scope of article 4(2) ECHR, despite it not being a provision that the applicants had relied on. The Court referred to the notion of forced labour in some of its previous landmark cases, such as Van der Mussele and Chowdury, while it based its argumentation on the term “prior consent”.

In Zoletic, it seems that the Court followed the approach that was adopted in the Chowdury case, where it held that “exploitation of labour is one of the forms of exploitation in the definition of human trafficking … that proves the relationship between forced labour and trafficking in human beings”. Taking into consideration the facts of the case and the evidence of the working and living conditions that the applicants provided, the Court found that the applicants’ arguments constituted an “arguable claim”. The Court therefore found they had been victims of forced or compulsory labour and human trafficking. The Court also underlined that the three elements of human trafficking were also met:  action, means, and purpose. 

Furthermore, the Court examined whether the Azerbaijani authorities were made sufficiently aware about the circumstances and concluded that the applicants’ claim was “sufficiently and repeatedly drawn to the attention of the domestic authorities” thus, under article 3 ECHR, the state had to fulfil its positive obligations and further investigate the relevant allegations. However, it had not been demonstrated that any attempts had been made to identify any of the allegedly implicated persons. As a result, the state had failed to comply with its obligation to investigate the applicants’ claims regarding forced or compulsory labour, leading to a breach of article 4(2) ECHR.

THE IMPACT OF THE COURT’S DECISION

The Court’s decision in Zoletic and Others v. Azerbaijan constitutes another addition to the long list of judgments on human trafficking and forced labour under the scope of article 4 ECHR. However, the question that arises is whether the present judgment constitutes a landmark case that will set an end to the ongoing definitional uncertainty that surrounds the notion of human trafficking. One problem is that the Court continues to take for granted that forced labour falls under the scope of article 4 without providing a conceptual link between forced labour and human trafficking. From previous case law, the Court seems to avoid clarifying how the facts of each case fit with the definition of human trafficking. In Chowdury, the Court only conflated human trafficking with forced labour without providing further clarifications. However, Zoletic constitutes an important step as it offered a clearer approach towards human trafficking and forced or compulsory labour compared to its previous judgments and provided a more specific explanation of the actions and practices that can constitute forced labour.

Overall, it seems that the struggle to define the conceptual apparatus under article 4 still exists. However, the present critique should not be perceived as a denial of the progress that has been made by the Court regarding the introduction of human trafficking at the ECHR’s case law. Therefore, Zoletic offers a clearer and more consistent approach of the Court regarding human trafficking and forced labour. However, the road towards completely clarifying the notion of human trafficking in the ECHR is still long.

Marialena holds an LLM in European Law from the University of Edinburgh and a BA in International, European and Area Studies from Panteion University of Athens. Her masters dissertation was titled “Does the current EU legal and policy framework ensure effective protection to victims of human trafficking and smuggling?”. She is currently working as a Research Assistant in the European Policy Centre.
Her primary research interests include migration and asylum, human rights and gender equality, and Brexit.

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