European Court of Human Rights
25 June 2020
Facts
The applicant lodged a criminal complaint against a former policeman alleging that he had physically and psychologically forced her into prostitution. The policeman was subsequently indicted on charges of forcing somebody to prostitution. The criminal court acquitted him on the grounds that it had not been established that he had forced her into prostitution. He had only been indicted for the aggravated form of the offence in issue and thus he could not be convicted for the basic form of organising prostitution. The State Attorney’s Office appeal against the decision was dismissed and the applicant’s constitutional complaint was declared inadmissible.
Complaint
Chamber of the Court held that the relevant State authorities had not fulfilled their procedural obligations under Article 4 of the Convention. They had neither investigated in depth all the relevant circumstances, nor made any assessment of the possible impact of psychological trauma on the applicant’s ability to consistently and clearly relate the circumstances of her exploitation. The case was referred to the Grand Chamber at the Government’s request.
Court’s ruling
The Court stated that Human trafficking fell within the scope of Article 4. This, however, did not exclude the possibility that, in the particular circumstances of a case, a particular form of conduct related to human trafficking might raise an issue under another provision of the Convention. It was not possible to characterise conduct or a situation as an issue of human trafficking, unless the constituent elements of the international definition of trafficking, under the Anti-Trafficking Convention and the Palermo Protocol, were present.
The three constituent elements of that crime were: (1) an action (what was done: the recruitment, transportation, transfer, harbouring or receipt of persons); (2) the means (how it was done: by means of threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position of vulnerability, or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person); (3) an exploitative purpose (why it was done: this includes, 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). A combination of the three constituent elements was necessary in order for the crime of trafficking to be established as regards adult victims.
The States have a:
- duty to put in place a legislative and administrative framework to prohibit and punish trafficking
- duty to, in certain circumstances, to take operational measures to protect victims, or potential victims, of trafficking
- procedural obligation to investigate situations of potential trafficking
The Court ruling found that while the applicant had been recognized as a potential victim of human trafficking, the domestic authorities had failed to adequately investigate her allegations of forced prostitution. The authorities had relied heavily on the applicant's statement and had not conducted sufficient investigations to gather additional evidence. This led to significant flaws in the domestic authorities' procedural response and undermined their ability to determine the true nature of the applicant's relationship with the alleged perpetrator. As a result, the Court concluded that there had been a violation of Article 4 of the Convention.