Rantsev v. Cyprus and Russia: Examining the European Court of Human Rights' Impact on Human Trafficking as Modern-Day Slavery

Introduction

Human trafficking has become a major issue in the international law discourse having relevance for human rights as well as crime and criminal law. A case that exposed the net of human trafficking for the sex industry spanning several European nations, was the case of Rantsev v. Cyprus and Russia, Decided by the European Court of Human Rights (ECtHR) in 2010, the case brought to fore the many social, human and legal costs of human trafficking and the effectiveness of the European Convention of Human Rights (ECHR) and ECtHR in preventing human trafficking in Europe. In this case, the ECtHR recognised human trafficking as slavery, thereby engaging Article 4 of the ECHR as well in human trafficking cases. The Rantsev case, decided by a chamber of seven judges, is now considered to be one of the most important decisions on human trafficking by the ECtHR.

Writers and commentators have written about the “dearth of legal interpretation of the phenomenon of human trafficking,” suggesting a paucity of literature as well as case law on the issue of human trafficking. For a crime that has caught the attention of the international community as well international bodies and institutions, earning the nickname of “modern day slavery”, it is surprising that there should be little literature on the topic.

This essay explores the role of the ECtHR in fighting against human trafficking and considers how the jurisprudence developed under Article 3 may have shaped the responses of the court to the specific human trafficking cases that came before it. The essay argues that in absence of clear doctrinal and legal interpretation of human trafficking, the ECtHR has risen to the challenge in the few cases of human trafficking that has come before it, to chart a legal framework of human trafficking under the ECHR. In this, the court has expanded the jurisprudence of Article 3 and more importantly, related human trafficking to Article 4, creating a direct relation between human trafficking and slavery, forced labour and servitude. In doing so, the court has allowed itself to be influenced by the earlier jurisprudence developed by the International Criminal Tribunal of Yugoslavia (ICTY). This is commendable because barring this approach, there has been no doctrinal assessment of human trafficking within the scope of slavery and forced labour in the ECtHR. However, the development of human trafficking under ECHR is as yet at a nascent stage.

• Rantsev v. Cyprus and Russia, No. 25965/04 of 7 January 2010.
• Anne T. Gallagher, The International Law of Human Trafficking (Cambridge: Cambridge University Press 2010) 188.
• Roza Pati, ‘States’ Positive Obligations With Respect To Human Trafficking: The European Court Of Human Rights Breaks New Ground In Rantsev V. Cyprus And Russia’, (2011) 29 Boston University International Law Journal 79, 81.

Human Trafficking: Meaning and Issues

Human trafficking is not defined anywhere in the ECHR nor is there any provision in the ECHR which directly relates to human trafficking. However, human trafficking is defined in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (Palermo Protocol) as follows:

“‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”

As per this definition, human trafficking has a meaning encompassing a variety of acts that are conducted by use of coercion with the ultimate effect of achieving control over the coerced person for exploiting such person for sexual exploitation, forced labour, slavery or removal of organs. This can be considered to be the most universally accepted definition of human trafficking because it the Palermo Protocol was adopted by the UN General Assembly. The Council of Europe too has adopted some measures on the prevention of human trafficking. The Council of Europe, Convention on Action against Trafficking in Human Beings, 2005 (European Trafficking Convention) and Article 5 of the Charter of Fundamental Rights in the European Union, 2000, and Directive 2011/36/EU of the European Parliament and Council on preventing and combating trafficking in human beings and protecting its victims, 2011 are two important measures. Along with the Palermo Protocol, the European measures seek to create a regime wherein the country of origin (to which the victim belongs) and the country of destination have certain obligations.

The problem of human trafficking has both domestic as well as international

• G.A. Res. 25, annex II, U.N. GAOR, 55th Sess., Supp. No. 49, at 60, U.N. Doc. A/45/49 (Vol. I) (2001), entered into force 9 September 2003.
• Ibid, Article 3 (a).
• Susan Dewey, Hollow Bodies: Institutional Responses to Sex Trafficking in Armenia, Bosnia and India (Kumarian Press 2008) 37.
• UN OHCHR, ‘Human Rights and Human Trafficking’, Fact Sheet 32, accessed < http://www.ohchr.org/Documents/Publications/FS36_en.pdf>

ramifications. This is because human trafficking usually involves groups of people working in collusion in more than one state. Commenting on this, Roza Pati states:

“The dehumanization of individuals, which it so often entails, takes place within and outside the borders of one state and one legal system. When trafficking occurs within a single state, the government of that state can address the issue comprehensively and effectively within its borders. However, when any element of the process relates to a foreign state, be it the nationality of the victim or the state in which the victim is temporarily crossing during his or her trafficking passage, not only is the control of the state over this activity legally and factually limited, but the victim is also put in a precarious position.”

In the sense as mentioned above, human trafficking often presents a continuum of collusion between actors present in more than one state, that may be involved in the trafficking, making it difficult for any one state to control or prevent trafficking as very often the trafficking victims are moved from one state to the other.

Human trafficking presents a complex problem for international law as well as states because the control, prevention and punishment of the offence requires a high degree of international support as each case of human trafficking may involve the movement or transportation of the victim across more than one state. As the case of Rantsev v. Cyprus and Russia demonstrates, this involvement of more than one state for the commission of trafficking may present complicated issues of accountability or responsibility of the involved states. This is discussed in more detail in the next section of the essay.

ECHR and Human Trafficking

There are no definitions or direct inclusions of human trafficking in the ECHR as ECHR does not directly make a reference to human trafficking. There are however other provisions in the ECHR that can be related to human trafficking. Considering the definition of human trafficking as provided in the Palermo Protocol, the principal areas of a victim’s rights impacted may be the right to life (Article 2); right against torture and inhuman or degrading treatment (Article 3); right against slavery and forced labour (Article 4); and right to liberty and security (Article 5).

• Roza Pati, ‘States’ Positive Obligations With Respect To Human Trafficking: The European Court Of Human Rights Breaks New Ground In Rantsev V. Cyprus And Russia’, (2011) 29 Boston University International Law Journal 79, 82.
• Rantsev v. Cyprus and Russia, No. 25965/04 of 7 January 2010.
• Palermo Protocol, Article 3 (a), above.

As there are no direct allusions to human trafficking in the ECHR, the ECtHR has had to rely on its own jurisprudence, particularly under Articles 3 and 4 and also the legal interpretations of human trafficking elsewhere. In interpreting human trafficking within the ECHR, the ECtHR was helped by previous interpretations of human trafficking within the meaning of slavery and forced labour by the ICTY in the case of Prosecutor v. Kunarac, Kovač and Vuković. This case is interesting as well as important to understand the approach of the ECtHR in the case of Rantsev v. Cyprus and Russia. In Kunarac, Kovač and Vuković, the ICTY identified a number of factors that may be relevant to defining enslavement and the related human trafficking crime. These include: physical and psychological control, that is, control of movement, physical environment, or measures taken to prevent or deter escape; the use of force, threat of force or other forms of coercion; assertion of exclusivity, cruel treatment and abuse, control of sexuality and forced labour.

Clearly, the definition of slavery and human trafficking as given by the ICTY finds parallels with actual ECHR rights in Article 2, 3, 4 and 5. In the case of Rantsev v. Cyprus and Russia, which remains the most important case decided by the ECtHR on human trafficking, the court has specifically referred to the findings of the ICTY, and this led the court to conclude that the traditional concept of slavery which has nexus to the right of ownership, now includes a range of contemporary forms of slavery, where the person in control exercises one or more powers that are linked to the concept of ownership.

Article 3 of the ECHR has by now developed a sufficient body of jurisprudence and it is pertinent to note how this jurisprudence may also have impacted the ECtHR in developing the legal framework on human trafficking. Article 3 of the ECHR provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

• Judgment, Case No. IT-96-23-T & IT-96-23/1-T, 22 February 2001. Harmen van der Vilt, ‘Trafficking in Human Beings, Enslavement, Crimes Against Humanity: Unravelling the Concepts’ (2014) 13 (2) Chinese Journal of International Law 297.
• Rantsev v. Cyprus and Russia, No. 25965/04 of 7 January 2010.
• Goran Sluitor, ‘Chapeau elements of crimes against humanity in the jurisprudence of UN Ad Hoc tribunals’, in Leila Nadya Sadat, Forging a Convention for Crimes against Humanity (Cambridge: Cambridge University Press 2011) 119.
• Harmen van der Vilt, ‘Trafficking in Human Beings, Enslavement, Crimes Against Humanity: Unravelling the Concepts’ (2014) 13 (2) Chinese Journal of International Law 297, 232.
• Rantsev v. Cyprus and Russia, No. 25965/04 of 7 January 2010.
• Ibid, 94
• ECHR, Article 3, accessed < http://www.echr.coe.int/Documents/Convention_ENG.pdf>

As such, Article 3 does not directly mention human trafficking and therefore whether human trafficking is related to Article 3 is an issue for the court to decide. Other the case of Rantsev, the ECtHR had on occasions related to the article 3 freedom from torture to rights that may otherwise seem unrelated. For example, in one case the court related it Article 3 to prevention from extreme material poverty. In Rantsev, the applicant alleged Article 3 violation by Cyprus because of its failure to protect Rantseva from the wrongdoings of a private party, which is a positive obligation for for the state. Cyprus later accepted that there was a violation of a procedural obligation to investigate the matter into the matter involving the forced work that the victim was made to do. The Court also noted in its judgement that maltreatment and cruelty are inherent characteristics of human trafficking. Therefore, the court accepted the contention of the applicant that Article 3 was engaged in the case.

However, the court has used Article 4 more than Article 3 in devising protection against human trafficking. In Rantsev, once the court accepted that torture and cruel treatment are inherent in human trafficking, it decided to discuss this issue together with the allegations brought under Article 4. For doing so, the court had to consider whether it could interpret Article 4 to include a protection against human trafficking.

In an earlier case on human trafficking, Silidian v France, the Court concluded that the victim’s treatment in a human trafficking context had amounted to servitude and forced and compulsory labor, but the court held that the treatment did not amount to slavery. However, in Rantsev, the Court revisited its earlier conceptualisation and now it found a relationship between slavery and human trafficking, bringing the latter within the context of the former and making human trafficking a part of ECHR rights. At this point, it will be worthwhile to consider the Rantsev case in some more detail.

Rantsev v Cyprus and Russia, was filed by the applicant, who was the father of a 21 year old Russian girl, who became a victim of human sex trafficking and was found dead in Cyprus 2 weeks after she came to the country for a job. The appellant alleged that the death of his daughter in the human trafficking case involved violations of, Article 2, which protects the right to life; Article 3, which provides freedom from torture, inhuman and degrading treatment; Article 4, which provides freedom from slavery, servitude, forced and compulsory

• M.S.S. v. Belgium and France, (App. no. 30696/09) of 21 January 2011.
• David John Harris, Michael O'Boyle, Ed Bates, Carla Buckley, Harris, O'Boyle & Warbrick: Law of the European Convention on Human Rights (3rd ed., Oxford: Oxford University Press 2014) 285.
• App. No. 73316/01 (Eur. Ct. H.R. 2005).
• Rantsev v. Cyprus and Russia, No. 25965/04 of 7 January 2010.

labour; and Article 5, which protects the right to liberty and security of the person. The case involved procedural elements as well because Rantsev alleged that the Cypriot government failed to protect his daughter or bring those responsible for the crime to justice

Interestingly, the ECtHR admitted the case saying that there was a “paucity of case-law on the interpretation of Article 4 [freedom from slavery, servitude, etc.] in the context of trafficking cases” and that there was an obligation for the court to “elucidate, safeguard and develop” the ECHR human rights guarantees for which the examination of human trafficking was necessary. The court also elucidated the meaning of Article 2 as follows with respect to state responsibility, which is: the State has to refrain from the intentional and unlawful taking of life of a person; and the State has to take appropriate steps to safeguard the lives of those within its jurisdiction.

In the context of Article 2, the procedural elements were also held engaged by the court. There were allegations that the victim in the case had tried to escape from the situation but these allegations were not investigated. There were other pieces of evidence that were not investigated and followed through by Cyprus. Regarding this, the Court found a procedural violation of Article 2 on the part of Cyprus.

Despite the court’s stance in the Ranstev case, there are other cases where the court has refused to entertain cases related to human trafficking, showing how nebulous the law is on the issue of human trafficking at this point in time. In M and others v Italy and Bulgaria, the Court found a violation of the procedural limb of Article 3 on account of an ineffective investigation into the first applicant’s alleged ill-treatment by the Serbian family. However, the court refused to consider the engagement of Article 4 rights and draw a connection between slavery and trafficking. In F.A. v the United Kingdom, the court refused to admit the case of a Ghanaian national who alleged that she was the victim of human trafficking and was brought to the UK and sexually exploited.

Regardless, there are certain positive obligations that are recognized by the court with respect to states and human trafficking. In Rantsev v Cyprus and Russia, the ECtHR identified an obligation on State parties to investigate cases of trafficking. The Court also

• Ibid, 46 paras. 200-201.
• Ibid, 50-51, para. 218.
• Ibid, 57-58, para. 241.
• Philip Leach, Taking a Case to the European Court of Human Rights (Oxford: Oxford University Press 2011) 73.
• No. 40020/03 of 31 July 2012.
• No. 20658/ 11 of 10 September 2013.

clarified that the obligation was to conduct full and effective investigations covering recruitment to exploitation aspects of human trafficking. These obligations applied equally to all states that were potentially involved in human trafficking. These could be States of origin, States of transit and States of destination. The court also held that if State authorities were aware or ought to have been aware of the risk of human trafficking, then it would be violating ECHR rights by not investigating the issue.

The role of the court in drawing a connection between slavery and human trafficking has been criticised by some writers. In an article entitled “Dancing across Borders”, the author argues that the court “should discard the human trafficking framework and should focus on the actual abuses prohibited under Article 4.” The article makes a superfluous attempt at critique of the ECtHR’s determination of the case as one coming under human trafficking because in the author’s words:

“On their face, the facts describing the story of the Russian woman did not indicate that she was, indeed, subjected to abuses that could be qualified as slavery, servitude or forced labour. Bar her deprivation of liberty at the police station and at the private apartment and her subsequent death under undetermined circumstances, there was nothing pointing to abuses against her.”



It will be a good counter-question to put to the author as to what would then amount to indicators of human trafficking of a young immigrant girl working as an artiste (which the Cyprus Ombudsman itself has said is nothing short of prostitution) if she is kept in detention and then dies under what the author admits are ‘undetermined circumstances’.

Conclusion

The law of human trafficking is as yet at a nascent stage as far as the ECHR is concerned because the ECHR does not have direct provisions on human trafficking and the ECtHR has had to define the contours of the issue by relating it to Article 2,3,4 and 5 of the ECHR. Here, some doctrinal guidance was already available in the cases decided by the ICTY wherein human trafficking was held akin to slavery. Consequently, the European Court has also taken

• UN OHCHR, ‘Human Rights and Human Trafficking’, Fact Sheet 32, accessed < http://www.ohchr.org/Documents/Publications/FS36_en.pdf>
• Jean Allain, ‘Rantsev v Cyprus and Russia: The European Court of Human Rights and Trafficking as Slavery’ (2010) 10 (3) Human Rights Law Review 546, 546.
• Vladislava Stoyanova, ‘Dancing On The Borders Of Article 4: Human Trafficking AndThe European Court Of Human Rights In The Rantsev Case’ (2012) 30 (2) Netherlands Quarterly of Human Rights 163, 163.
• Ibid, 167.

a creative approach to defining human trafficking within ECHR by relating the former to ECHR rights. Having said that, this essay has also shown that as yet the law is not clearly developed and there are many cases where human trafficking claims are not submitted by the court.

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References

• Allain J, ‘Rantsev v Cyprus and Russia: The European Court of Human Rights and Trafficking as Slavery’ (2010) 10 (3) Human Rights Law Review 546
• Dewey S, Hollow Bodies: Institutional Responses to Sex Trafficking in Armenia, Bosnia and India (Kumarian Press 2008)
• Gallagher AT, The International Law of Human Trafficking (Cambridge: Cambridge University Press 2010)
• Harris DH, O'Boyle M, Bates E, Buckley C, Harris, O'Boyle & Warbrick: Law of the European Convention on Human Rights (3rd ed., Oxford: Oxford University Press 2014)
• Leach P, Taking a Case to the European Court of Human Rights (Oxford: Oxford University Press 2011).
• Pati R, ‘States’ Positive Obligations With Respect To Human Trafficking: The European Court Of Human Rights Breaks New Ground In Rantsev V. Cyprus And Russia’, (2011) 29 Boston University International Law Journal 79
• Sluitor G, ‘Chapeau elements of crimes against humanity in the jurisprudence of UN Ad Hoc tribunals’, in Leila Nadya Sadat, Forging a Convention for Crimes against Humanity (Cambridge: Cambridge University Press 2011).
• Stoyanova V, ‘Dancing On The Borders Of Article 4: Human Trafficking And The European Court Of Human Rights In The Rantsev Case’ (2012) 30 (2) Netherlands Quarterly of Human Rights 163
• UN OHCHR, ‘Human Rights and Human Trafficking’, Fact Sheet 32, accessed < http://www.ohchr.org/Documents/Publications/FS36_en.pdf>
• Vilt HVD, ‘Trafficking in Human Beings, Enslavement, Crimes Against Humanity: Unravelling the Concepts’ (2014) 13 (2) Chinese Journal of International Law 297