Siliadin v. France
The first ECtHR case to consider the obligation of member states to have laws in place directly addressing human trafficking was the 2005 case of Siliadin v. France, no. 73316/01, 2005-VII. This case involved a 15-year-old girl recruited from Togo to work in France as a domestic. She was told that she would work until her airline ticket was paid back and would then receive a visa to stay in Europe and go to school. She came to France on a temporary tourist visa. However, the French couple who “employed” her kept her passport and made no attempts to account to her for the ticket cost or to update her immigration status. She worked as an unpaid domestic, living in their house and caring for their four children 24 hours a day. After she had done this for four years, a neighbor in whom she confided urged her to go to the police.
The couple who kept her were arrested and prosecuted. However, since at that time neither France nor, for that matter, any other Council of Europe member state had laws specifically prohibiting domestic slavery, they were only convicted of the lesser charge of not providing her fair pay for the services, and they were acquitted on the greater charge of working conditions incompatible with human dignity, which severely limited her recovery. The result was confirmed on appeal by the French courts.
The ECtHR reviewed a number of European Parliament reports, including the French National Assembly’s Joint Fact-finding Task Force on the Various Forms of Modern Slavery and the 2001 Report by the Committee on Equal Opportunities for Women and Men. These reports discussed the problem of “domestic slavery,” which they reported had just recently appeared in Europe in the last few years. The reports estimated that there were “several thousand” victims of domestic slavery in France and declared that the Council of Europe must have a “zero tolerance” policy for this offense. In Siliadin, the Court found that, while the minor was not held as a slave in the classic sense, she was held in servitude and subjected to forced labor. This was sufficient to constitute a violation of Article 4, Prohibition against Slavery, Servitude and Forced or Compulsory Labor, of the European Convention on Human Rights (ECHR or the Convention). As a result, France and the other member states had an affirmative duty, a “positive obligation” in the words of the Court, to have effective laws in place to prevent this type of domestic human trafficking. Siliadin, paras. 49, 120, 129.
Rantsev v. Cyprus and Russia
France was the only Convention member state involved in the Siliadin case, so the Court did not discuss the liability of origination states or states of transit. However, in the 2010 case of Rantsev v. Cyprus and Russia, the Court was directly presented with this question.
Oxana Rantseva, a 21-year-old Russian woman, arrived in Cyprus in 2001 on an “artiste” visa after being recruited in Russia to work at a Cypriot cabaret. She quickly became upset with the working conditions, which included sex trade requirements, and, after three days, she abandoned her job and disappeared. Her employer located her and took her to a police station, where he intended to report her for visa violations. She was held by them for about an hour but was subsequently released back into her employer’s custody after they determined that they had no basis to hold her. Within hours she was found dead outside the window of an apartment building where she and the employer had both spent the night.
It was unclear how Rantseva had died, given the conflicting police and witness statements. The employer and two other witnesses claimed that she had jumped to her death in an attempt to escape. The results of the investigation by the Cypriot police were inconclusive, but a local court, asked to determine the cause of death, concluded that the evidence did not suggest that her death was a homicide. Rantseva’s father, the applicant, believed that her death was suspicious and requested that her body be repatriated from Cyprus to Russia for a new autopsy. The result of the second autopsy showed that she had died under “strange and un-established circumstances, demanding additional investig- ation . . . ”. The findings were forwarded to the Cypriot authorities in the form of a request for mutual legal assistance under treaties in which Cyprus and Russia were parties. The request asked that further investigation be carried out, that the institution of criminal proceedings in respect of Ms. Rantseva’s death be considered, and that the applicant be allowed to participate effectively in the proceedings. After an extended period of unproductive diplomatic wrangling, Cypriot authorities eventually refused, stating that the decision of the Inquest Court, by then more than five years old, was final and would not be reopened.
The Rantsev Court adopted an even broader view of the definition of human trafficking under Article 4 of the European Convention than had the Siliadin Court, borrowing the definitions found in Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention. Rantsev, paras. 137–74. But more importantly, the Court found that the obligation of member states was not limited to simply having laws in place prohibiting human trafficking, which both countries did. Member states were also obliged to have effective procedures in place, which the Court referred to as “procedural obligations,” to ensure that those laws were effectively enforced. Moreover, the Court found that this “procedural obligation” had both a domestic and an international component. Rantsev, para. 289. The Court noted with approval Russia’s domestic procedures, including far-reaching informational campaigns, in place to combat the ever-increasing problem of recruitment of young Russian women into the international sex trade. However, the Court nonetheless found Russia in violation of its obligations under the European Convention because of its inadequate procedures for international cooperation in enforcement and investigation of human trafficking. The Court based this finding on its belief that Article 4 of the European Convention applies equally to each country in what the Court called the “trafficking chain,” whether it be the country of recruitment or destination or simply a transit country. Rantsev, paras. 307–09.
By finding that Article 4 imposed international “procedural obligations” on the member states, the Rantsev Court set a bold new ground-breaking precedent. No case had previously applied the concept of “procedural obligations” to cross-border problems of an interstate or multistate nature. The Court had routinely found a state in violation of its obligations under the convention for not initiating its own investigation of a possible violation, but it had never found a state in violation for not participating in an investigation started by another state. The Court recognized that human trafficking had become a “global phenomenon,” requiring bilateral or multilateral efforts by the states to be effective. Unilateral efforts of a single state would no longer be effective to satisfy the state’s procedural obligations under the Convention. Rantsev, para. 78.
The Court, however, did not describe the parameters or limits of this new concept of “international procedural obligations.” It is well established that, as in Siliadin, where the Court finds domestic positive or procedural obligations on the part of a member state, it may require that state to implement appropriate legislation to fulfill those obligations. Does the same reasoning apply to international procedural obligations? If so, this would suggest that the Court could require a member state to enter into international treaties, conventions, or mutual assistance pacts. Such a pronouncement would represent a dramatic expansion of the Court’s authority over the foreign relations of a member state. With some member states already chafing at the increasing control of the Court over their internal affairs, such federalization of efforts to combat even admittedly critical problems such as human trafficking may face an uphill battle, but at least it seems that this conversation has begun.