Trafficking in Human Beings
The Positive Obligations of States under Article 4 of the European Convention on Human Rights and Fundamental Freedoms
Master's Thesis 2011 78 Pages
Table of Contents
List of Abbreviations
Chapter One: The scope of the positive obligations
1.0 The scope of the positive obligations
1.1 The significance of Rantsev regarding THB
1.2 Methods to combat THB
1.3 The 3 Ps
1.4 Rantsev & its link to the Comprehensive Approach
1.5 The responsibility of states
1.7 The scope of legislative -administrative measures
1.8 The scope of protective measures
1.9 The scope of investigation of trafficking
1.10 Criticism on the Court’s interpretation
Chapter Two: policy changes in Cyprus
2.0 Policy Changes in Cyprus
2.1 Overview of THB in Cyprus
2.2 The Court’s findings
2.3 Summary changes in Cyprus
2.4 The new immigration policy
2.5 Law 87(I)/2007
2.6 Overview institutional THB framework in Cyprus
2.7 Multi-Disciplinary Co-ordinating Group
2.8 The NAP 2010-12
2.9 Developments in Law enforcement
2.10 Summary of GRETA recommendations
Chapter Three: Protective Measures in Cyprus
3.0 Cyprus: implementation of protective measures
3.1 Protective measures under Article 4 ECHR recapped
3.2 Identification of THB victims in Cyprus
3.3 Information provided to THB victims
3.4 Recovery, reflection period and residence permits
3.5 The non-criminalization of THB victims
3.6 The National Referral Mechanism
Chapter Four: The National Referral Mechanism in Cyprus
4.0 The National Referral Mechanism
4.1 Features of NRMS and values underpinning it
4.2 Summary key requirements of an NRM
4.3 The NRM in Cyprus: an analysis
4.4 Issues with police practice in identifying TBH victims in Cyprus
4.5 Co-operation amongst all stakeholders
4.6 Transnational Referral Mechanisms
Chapter Five: Conclusion
List of Abbreviations
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The Rantsev Case and Trafficking in Human Beings
Trafficking in Human Beings (THB) for sexual and labour exploitation is a severe violation of Human Rights. Yet, while efforts both on a European as well as international level, aim to combat and eradicate this heinous crime, reality depicts a worldwide rise in THB.1 Trafficking in Human Beings is a truly lucrative business for the perpetrators of organized crime, whilst pre- dominantly targeting the most vulnerable groups in society.2 The European and international discourse on Trafficking in Human Beings has recognized that the previous criminal law approach to THB in some countries is ineffective in combating this crime.3 This is evident in the global rise of THB. The criminal law approach, with a narrow focus on the prosecution of perpetrators, disregarded the plight of the victims of THB and their highly vulnerable position.4 Thus an increased focus has been given to a comprehensive approach to trafficking in human beings, which must implement a human rights based approach, in order to place the victims at the center of focus, whilst aiming to strengthen their position and protection.5 The 2010 judgment of Rantsev v Cyprus and Russia at the European Court of Human Rights (ECtHR) reflects the discourse on a more comprehensive approach to Trafficking in Human Beings6 and was a watershed as regards the positive obligations of state parties, in combating THB.
In its landmark judgment in Rantsev, the European Court of Human Rights broadly extended7 the positive obligations of states, party to the European Convention on Human Rights and Fundamental Freedoms (ECHR) under its Article 4.8 Article 4 provides safeguards against slavery, servitude and forced or compulsory labour.9 Article 4 does not mention Trafficking in Human Beings but was established to fall within the scope of Article 4 ECHR for the first time in Rantsev. 10 The 2005 Siliadin judgment considered the plight of an underage Togolese girl to qualify as servitude, forced or compulsory labour, whilst falling short of slavery under Article 4 ECHR.11 In Siliadin, the term Trafficking in Human Beings was not employed but the modern forms of slavery and servitude as identified by both the United Nations (UN) and the Council of Europe (CoE), recognize the close link of these concepts to Trafficking in Human Beings.12
In Rantsev, the Court confirmed this view, whilst establishing THB to fall under Article 4.13 Rantsev elaborated on and extended the positive obligations of state parties under Article 4 ECHR, as regards Trafficking in Human Beings.14 The three positive obligations of States confirmed or established in Rantsev under Article 4 are (1) to put in place an appropriate legal - administrative framework to combat THB (Siliadin),15 (2) to provide for protective measures for THB victims and (3) the procedural obligation to investigate trafficking.16 The Court held in Rantsev that states have a positive obligation for mutual co-operation to investigate crossborder trafficking, as part of the procedural obligation to investigate THB.17
Clearly, the judgment of the Court had consequences for Cyprus and Russia, as well as all states, party to the European Convention on Human Rights and Fundamental Freedoms.18 The main consequence was the duty to implement these positive obligations into the national systems of state parties.19 An examination of how Cyprus has implemented the positive obligations flowing from Rantsev is particularly interesting, as it was the scene of the crime, in which a young Russian girl found her early death under tragic circumstances,20 highlighting the tremendous importance of national protective measures for THB victims. Also, the implementation by Cyprus of the positive obligations regarding THB established under Article 4 ECHR, exemplify some of the issues raised in recent regional and international discourse on THB, whilst providing an indication of the problems faced by states in dealing with Trafficking in Human Beings. Therefore the formulation of the research question is as follows:
What is the scope of the positive obligations of states under Article 4 ECHR regarding Trafficking in Human Beings and how has the establishment of the obligation for protective measures under this Article advanced the protection of victims of trafficking and sexual exploitation in Cyprus?
Thus the aim of the research is an analysis of the scope of the three positive obligations of states under Article 4 ECHR, as regards THB, with particular focus on the implementation of protective measures in Cyprus. In order to find answers to my research question I will discuss the scope of the three positive obligations under Article 4 ECHR regarding THB in chapter one, whilst introducing the concepts of the comprehensive approach and the 3 Ps against Trafficking in Human Beings, which are prevention, protection and prosecution of Trafficking.21 I will highlight the essentials of the Siliadin case as regards THB and discuss the significance of the Rantsev case in combating THB, its link to the comprehensive approach and the three Ps, its principal facts, general principles and judgment. One of the central arguments in my thesis is that only a combination of and addressing of all three aspects of the 3 Ps (prevention, protection, prosecution) will proof effective in combating THB effectively.22
The focus of chapter two is the examination of the implementation of Cyprus of its positive obligations under Article 4, supplemented by the 2005 Council of Europe Anti-Trafficking Convention (Anti-Trafficking Convention). I supplement the discussion of Cyprus’s implementation of its obligations under Article 4 ECHR with the Anti-Trafficking Convention because the Rantsev judgment is based on and relies upon provisions in the Anti-Trafficking Convention.23 Thus, although the Anti-Trafficking Convention has a much broader focus on THB, the obligations under Article 4 in Rantsev and the obligations of states, party to the Anti- Trafficking Convention, are similar in nature. Examining the implementation by Cyprus of its obligations flowing from Article 4 regarding THB, will aid our understanding of the general policy changes in Cyprus, and Cyprus’s current situation as regards Trafficking in Human Beings. Such an understanding is essential for zooming in on obligation for protective measures, as done in chapter three.
In chapter three I focus on the obligation for protective measures under Article 4 ECHR as established in Rantsev. The Court in the Rantsev judgment based the obligation for protective measures to protect victims of Trafficking on provisions in the Palermo Protocol and the Anti- Trafficking Convention, as well as two of the Ps, which are first prosecution and then protection.24 The Rantsev judgment reflects a human rights based approach to Trafficking in Human Beings25 and re-emphasizes the importance of protective measures. The human rights based approach to THB takes the position of the victims, the violations of their rights, as well as their vulnerable position as a starting point.26 As such, the protection of the human rights of victims’ acts as the guiding principle for adopting measures, policy and legislation related to THB.27
The focus of the research in this thesis is on the obligation for protective measures because of the continuing global rise in THB, whilst prosecution of this inhumane crime remains scarce.28 The three Ps highlight that prevention, protection and prosecution of THB are an interconnected concept, which must be realized in conjunction, in order to eliminate or reduce the occurrence of Trafficking in Human Beings. Taking a human rights based approach to THB, meaning that the protections offered to THB victims are strengthened and the three Ps are addressed equally, may ultimately alleviate the disjunction29 between the world wide rise in THB30 and the scarce prosecution of trafficking related cases.31 This is so because offering greater and more comprehensive protection to victims of trafficking presumably enhances the likelihood of their co-operation in criminal proceedings32 against the perpetrators of this heinous crime. Thus the obligation for protective measures is a matter of urgent social and international responsibility, whilst impertinent in protecting vulnerable THB victims, and in preventing them from being re- victimized by the respective system.33
Central focus of chapter four is the National Reporting/Referral Mechanism in Cyprus because of its vital importance as an institutionalized legal mechanism to protect victims’ rights,34 to set standards, and to identify and refer THB victims to appropriate services.35 Chapter five draws some conclusions and offers some recommendations. The essence of the conclusion in chapter five is that in order to effectively combat THB in the long term, all three themes of prevention, protection and prosecution must be addressed with equal effort and in a manner that is mutually reinforcing.36 A theme throughout the thesis is the important role played by state parties in implementing adequate and victims focused approaches to THB. Implementation of regional and international standards in individual member states, which are backed by academic and legal scholarly opinion are a vital stepping stone to combat THB effectively.
In terms of my research methodology, literature and desk study have been the pre-dominant methods employed in answering my research question. I supplemented these methods with personal communications with the Secretariat of the Group of Experts on Action against Trafficking in Human Beings (GRETA), a body established by the Council of Europe Anti- Trafficking Convention to monitor the implementation of the Convention in member states.37
The main sources used for analyzing the implementation of Cyprus of its positive obligations under Article 4 ECHR were the GRETA report on Cyprus, released in early September 2011 and titled Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Cyprus, as well as the Communication from the delegation of Cyprus to the Council of Europe Committee of Ministers.38 The Committee of Ministers is responsible for the supervision of the execution of ECtHR judgments.39
The main sources for gathering information on and for analyzing the National Referral Mechanism, were a 2009 Report by various NGOs making-up the European Network Against Trafficking in Human Beings,40 a 2011 report titled Trafficking for Labour,41 prepared by authors from the Greek re-integration center for migrant workers, as well as the OSCE/ODIHR (Organization for Security and Co-operation in Europe & Office for Democratic Institutions and Human Rights) Handbook on National Referral Mechanisms.42 This handbook, in conjunction with the UN Office on Drugs and Crime’s (UNODC) International Framework for Action, released in 2009,43 provide the current regional and international standards, against which Cyprus’ National Report/Referral Mechanism will be analyzed.
1. The Scope of the three Positive Obligations of States under Article 4 of the European Convention on Human Rights in Cyprus and their link to the Comprehensive Approach against Trafficking in Human Beings
Article 4 ECHR:
1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour. 4 4
The Rantsev case confirmed the positive obligation of states to criminalize trafficking under national criminal law frameworks as first established in the EtCHR judgment Siliadin v France in 2005 and to provide an adequate legal - administrative framework to combat THB.45 In Rantsev two additional positive obligations of states party to the ECHR were recognized and established under Article 4.46 These are the obligation to provide protective measures for THB victims or potential victims and the procedural obligation to investigate trafficking., including the obligation for mutual co-operation between state parties in investigation of cross-border trafficking.47
1.1 The significance of Rantsev regarding Trafficking in Human Beings
Trafficking in human beings is a heinous crime against the dignity and integrity of the human being.48 Combating this crime against the body, spirit and soul of the victim, in addition to protecting the victim, should and must be central to global, regional and national efforts of fostering human rights standards. Trafficking in Human Beings is increasing in global scale, with approximately ‘27 million men, women and children,’49 being trafficked worldwide, as of 2011. As noted by the European Court of Human Rights in Strasbourg, the settlement of the Palermo Protocol in 2000 and the Anti-Trafficking Convention in 2005, exemplify both the increasing recognition at international level of the prevalence of THB and the need for measures to combat it.50 The Rantsev case, as well as the above mentioned human rights documents and legal - academic literature emphasize the importance of a human rights focused perspective - which takes the central vulnerable position of the victim as a starting point - because of its potential benefits for increasing prosecution of THB cases, and punishment of perpetrators, and its likelihood of decreasing the occurrence of THB as the ultimate goal.51
The ECtHR case of Rantsev v Cyprus and Russia is significant for combating THB in Europe and in the Courts member states for a number of reasons, one being that it established THB to fall within the scope of Article 4 of the European Convention on Human Rights and Fundamental Freedoms.52 Article 4 stipulates freedom from slavery, servitude and forced labour. In the prior judgment of Siliadin v France in 2005, the Court held that treatment of a Togolese child domestic worker amounted to a form of servitude under Article 4,53 whilst the Rantsev case for the first time established that trafficking in human beings fell under Article 4, regardless of which of the three types of conduct under this articles provision is engaged (slavery, servitude or forced or compulsory labour).54
In Essence, the Rantsev case is significant on four main counts: the recognition that human trafficking falls within the ambit of Article 4 ECHR; the holding that states have positive obligations under this Article to combat THB; the expansion of measures States must take to fulfill these obligations55 and the fact that the Rantsev judgment reflects a human rights based approach to THB.56 As regards, the recognition of human trafficking to fall under the scope of Article 4, the establishment of this general principle in Rantsev is particularly important in the light of the extremely scarce consideration and application of Article 4 as regards THB.57 The 2005 Siliadin case was in fact the first instance at the Strasbourg Court in which slavery in its modern form, which qualifies as Trafficking in Human Beings, was considered under this Article.58 The disjunction between the worldwide increase of the crime of THB and the scarce case law at the European Court of Human Rights59 makes these two cases landmark judgments and substantial for setting standards in the fight against THB.
1.2 Methods to combat THB: The Comprehensive Approach and the 3 Ps
A number of methods exist to combat Trafficking in Human Beings. The method, which has been emerging as the most significant in recent years is called the Comprehensive Approach.60 Despite being a process, the formulation of the Comprehensive Approach can at least in part be found in for example the Palermo Protocol,61 the Anti-Trafficking Convention62 or the EU Directive 2011/36/EU.63 As its name prescribes, this method requires a multi-disciplinary approach to THB and requires implementation of comprehensive national frameworks to combat THB.64 It integrates and adjusts for example human rights law, with criminal and migration law, whilst addressing THB prevention, protection and prosecution and root causes of THB.65 The Comprehensive Approaches’ main focus and aim, as I am employing this term in this thesis, is to examine and combat THB in a comprehensive manner, with a view to protecting the victim, incorporating all relevant fields and necessary methods.
The notion and formulation of the Comprehensive Approach against THB is an ongoing international and regional process, both on a theoretical as well as practical level, requiring further development and implementation, in particular at national level. As noted in Article 5(3) of the Anti-Trafficking Convention and highlighted in the UN Recommended Principles and Guidelines on Human Rights and Human Trafficking, a human rights based approach,66 also called a victims centered-approach67 must be part of the Comprehensive Approach in national applications. The main reason being that at its core, the human rights based approach starts from the central position of the victim.68 It takes the violations of the victims’ rights along with their vulnerable position69 as the starting point for any strategy. As such the Comprehensive Approach aims to shift the discourse on THB from the utter invisibility of the victims to visibility with the aim to protect, re-integrate and empower victims of trafficking.70
1.3 The 3 Ps: Prevention, Protection, Prosecution
Another important method aimed at eradicating THB, which forms part of, or at least overlaps with the Comprehensive Approach against THB, are the three obligations upon states to prevent trafficking, protect victims and prosecute perpetrators, correspondingly called the 3Ps.71 The notion of the 3Ps can, partially be found in the Palermo Protocol72 and the Anti-Trafficking Convention73 and are three agreed upon international themes.74 The 3Ps are important obligations in the fight against trafficking, as they aim to address the main areas, as are, prevention, protection and prosecution, with prosecution being inclusive of punishment of the perpetrators. In terms of the global fight against THB, it is important to note that implementation of anti-trafficking measures and policies on national domestic levels is a vital stepping stone to stopping the modern international slave trade. This is the case because the more states effectively combat THB, the greater the chances of creating a world free from this atrocious crime. In addition, each state that effectively implements adequate anti-trafficking responses, adds a layer to the prevention, protection and prosecution of THB regionally. Just like with other international human rights issues and efforts, implementation of measures and policies at domestic level, remains one of the major challenges and prospects75 for a world free from modern day slavery.
1.4 Rantsev and its link to the Comprehensive Approach and the 3Ps
The three positive obligations under Article 4 ECHR in the Rantsev case, one confirmed, two established are significant because they strengthen the normative and legal obligations of state parties in implementing a human rights focused and more Comprehensive Approach against THB. In addition, the three obligations under Article 4 fortify the three themes of prevention, protection and prosecution. The court’s ruling in Rantsev, whilst more narrow in focus than the Palermo Protocol and the Anti-Trafficking Convention, refers to these documents, and draws on some of their provisions in reaching its conclusions.76 Ultimately, the Comprehensive Approach, the 3 Ps and the Rantsev judgment are linked and mutually re-enforcing concepts, as all three embody the acknowledgment of approaching THB in a more comprehensive manner, and reflect the trend towards integration of a human rights focused perspective to THB. The Rantsev decision obliges state parties to the European Convention on Human Rights to implement and translate the obligations established into practice. The implementation of the Rantsev decision in Cyprus and Russia, which is the Rantsev judgment’s completion, is currently under execution by the Committee of Ministers of the Council of Europe.77
To sum up, the 3Ps and the positive obligations under Article 4 ECHR established in Rantsev are mutually re-enforcing and ultimately feed into the development of the Comprehensive Approach. More importantly however, the interpretation of Article 4 ECHR in Rantsev has increased the scope of this Articles provisions, essentially raising the anti-trafficking standards and policies in the member states, because of the duty of state parties to implement the judgment.78 In my view, the Court’s decision embodies the efforts of the European as well as the international community to foster a civil society, in which human trafficking is more effectively prevented and potential victim protections are more efficiently met, whilst perpetrators are increasingly prosecuted. The practical dimension of the implementation of the positive obligations under the Anti-Trafficking Convention, as well as under Article 4 ECHR, will be explored in chapter two at hand of the example of Cyprus.
1.5 The increasing responsibility of states, the erga omnes status of the prohibition of slavery in international law, and the significance of the three obligations under
Article 4 ECHR
The tragedy of human trafficking for sexual and labour exploitation has been interwoven with history since the beginning of time.79 The 21st century however, saw the emergence of a body of international and regional human rights standards and protections, which continue to gain in depth and increase a state’s responsibility towards the individual.80 International Human Rights treaties create both negative and positive obligations upon states.81 A negative obligation denotes the non-interference of the state with a given right of the individual,82 whilst a positive obligation stipulates that a state actively protects and fulfills particular rights.83 According to UN human rights treaty bodies, states are expected to adopt a tripartite typology ‘to respect, protect and fulfill human rights.’84 The increasing responsibility, duty or positive obligation of a state towards the prevention of trafficking, the protection of victims and the prosecution of its perpetrators, is advanced by the Rantsev Judgment.85
It is important to emphasize that the three positive obligations of States under Article 4 ECHR belong to an area of international human rights law understood as special in nature86 because Trafficking in Human Beings is generally recognized as a contemporary form of slavery.87 The prohibition of slavery in international law, is not only a peremptory norm of jus cogens, but also has erga omnes status thus, is an erga omnes norm.88 The prohibition of slavery, as a norm of jus cogens is recognized by the international community of states as a whole as an ‘intransgressible principle of customary international law’89 and no derogation of this norm is permitted under international law.90 The International Court of Justice (ICJ) famously emphasized the special character of certain human rights obligations,91 including the prohibition of slavery by advocating that certain human rights obligations92 have erga omnes status,93 proposing that these obligations are owed ‘towards the international community as a whole.’94 In addition, with regard to the European Convention on Human Rights, the safeguard provisions under Article 4 ECHR epitomize some of the most fundamental values of the European community of states.95
Article 1 of the European Convention stipulates that ‘the high contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’96 Section I of the ECHR includes Article 4 and thus the rights established and protected under Article 4 must be complied with.97 In addition, the three positive obligations under Article 4 ECHR as regards Trafficking in Human Beings have now been established in express rather than implied terms,98 thereby increasing state parties’ duty to comply. Also, this Article regulates the adoption of the Convention into the national law of the contracting states,99 which is regulated by the subsidiarity principle.100 Contracting parties differ in their implementation of the guarantees codified in the Convention into national law101 and are allowed a margin of appreciation in their enactment.102 The subsidiarity principle essentially means that states are the ones responsible for formulation of national legislation and protection mechanisms, which reflect and guarantee the rights and freedoms assured in the Convention.103 Thus the European Court only has a supervisory role.
The subsidiary relationship104 between the Convention and the national laws of contracting states, mediates democratic pluralism with the common good105 as embodied in international and regional human rights standards. One of the reasons why it is so important that comprehensive anti-trafficking measures are implemented on national level is because national law is the first point of contact106 with or protections offered to THB victims. It is therefore of substantial importance to have judgments like Rantsev, which increase contracting states obligation to adjust their national legislation in accordance with the minimum standards inaugurated. The subsidiary nature of engagement between the Convention and national legislation is a significant reason why implementation of comprehensive anti-trafficking mechanisms at national level is a fundamental stepping stone to better combat Trafficking in Human Beings.107 The Convention and its case law raise the general standards of human rights protections108 through the creation of positive obligations for contracting states. The Convention is a living and evolving instrument,109 which creates boundaries for state parties, thereby counter acting potential human rights limitations in the national laws of contracting states.110
1.6 Discussion of Rantsev:
The principal facts/judgment
In a unanimous judgment on 7 January 2010, the European Court of Human Rights ruled that Human Trafficking is a violation by states of Article 4 of the European Convention on Human Rights.111 The Rantsev case originated in May 2004112 by the applicant, Mr Nikolay Mikhaylovich Rantsev, a Russian national, whose daughter, Ms Oxana Rantseva, died aged 21, in ambiguous and unexplained circumstances,113 when she fell from a window from the sixth floor of a private home in Cyprus in March 2001.114 Ms Rantseva, a Russian national born in 1980, had arrived in Cyprus in March 2001 on an “artiste visa” to work in a cabaret in Limassol, owned by X.A115 and managed by his brother Marios Athanasiou,116 or M.A.117 Three days after starting work, Ms Rantseva abandoned the Cabaret and her residence there,118 leaving a note stating that she was tired and returning to Russia. 119
Ten days later, Ms Rantseva was spotted in a discotheque in Limassol and M.A, along with one of his security guards took her to the police station, asking the police to detain her, with the view to expel her as illegal, so that he could replace her with a new girl to work in his cabaret.120 After checking the databases and speaking to the Police Aliens and Immigration Service (AIS), the officer on duty concluded that Ms Rantseva did not appear to be an illegal, declined to detain her, asked M.A. to pick her up, as the AIS assumed M.A. to be responsible for her as her employer.121 M.A. was asked to take Ms Rantseva to the Limassol Police station the next morning to further investigate her immigration status.122
Ms Rantseva was taken to the lodging of M.P, an employee at M.A.s cabaret and about an hour and a half later, at around 6.30 am in the morning was found dead on the street below the apartment.123 A local court decided that Ms Rantseva died in strange circumstances resembling an accident, in an attempt to escape from the apartment, but did not propose criminal liability for her death.124 In contrast to the judgment of the Strasbourg Court which later held and established that the obligation to protect Ms Rantseva’s right to life under Article 2 (right to life) ECHR, includes a procedural obligation to conduct an effective investigation where death occurs under suspicious circumstances.125
The circumstances in Ms Rantseva’s case were indeed highly suspicious and contradictory as has been emphasized by her father Mr Rantsev and by an autopsy conducted in Russia (Chelyabinsk) in May 2001, which concluded ‘without doubt’126 the injuries sustained ‘happened while she was alive’127 and transpired ‘within a very short time period, one after another,’128 just before she died.129 The circumstances of the Rantsev case exemplify the great suffering of the victim and their relatives implicit in trafficking and emphasize the utter importance of victim focused responses to its occurrence. The interpretation of the Strasbourg Court is particularly beneficial in terms of a victims focused approach, because the obligation under Article 2 ECHR may prevent states in the future from turning a blind eye to trafficking for sexual exploitation. The case has highlighted the prevalence of THB in Cyprus and drawn considerable media attention thus acting as a catalyst for change on the island.
The Cypriot Ombudsman, the Council of Europe’s Human Rights Commissioner and the United States State Department have highlighted the prevalence of Trafficking in Human Beings for sexual and labour exploitation in Cyprus, predominantly in the form of the cabaret industry and facilitated by these so-called “artiste visas.” The applicant, relying on Article 2,3,4,5 and 8 of the European Convention on Human Rights, complaint about the lack of investigation into the circumstances of his daughter’s death, the lack of protection provided to his daughter by the Cypriot police while she was still alive, and the failure of the Cypriot authorities to take steps to punish those responsible for Ms Rantseva’s death and ill-treatment.130 He further complained under Articles 2 and 4 about the failure of the Russian authorities to investigate his daughter’s alleged trafficking and subsequent death.131
In summary, the Strasbourg court held that there had been a procedural violation of Article 2 of the Convention by Cyprus because of its failure to conduct an effective investigation into Ms Rantseva’s death.132 A violation of Article 4 by Cyprus for not affording Ms Rantseva practical and effective protection against trafficking and exploitation and not taking necessary and specific measures to protect her.133 In other, words for failing to protect the victim from being trafficked, and failing to adequately investigate her death134 and a violation of Article 5 (arbitrary detention).135 It held that there was no need to examine separately the alleged breach of Article 4 concerning the continuing failure of the Cypriot authorities to conduct an effective investigation because this violation was examined and established under the procedural obligation to conduct an effective investigation under Article 2 of the Convention.136 As regards the Russian Federation, the Court found a violation of Article 4 for failing to investigate how and where she had been trafficked, and who was involved in recruiting her.137
The judgment takes a Comprehensive Approach to tackling THB138 and inaugurates the obligation to examine the whole chain of trafficking.139
The ratification average of a treaty, convention or protocol, gives a general indication as to whether a form of consensus exists regarding its content. The Anti-Trafficking Convention has to date 34 ratifications and 9 signatories, bringing the number to 43, whilst the Council of Europe has 47 member states.140 The Palermo Protocol has 117 signatories and 147 parties.141 Based on the ratification average of these two anti-trafficking documents, the European Court of Human Rights argued in Rantsev that almost all member states of the Council of Europe agree to the view that only a combination of measures, addressing all three Ps are effective in the fight against THB.142 The extent or scope of the positive obligations arising under Article 4 must therefore be considered within this broader context,143 thus giving them additional weight or authority. Such statements by the Court highlight the Comprehensive Approach applied in the Rantsev judgment.
1.7 What is the scope of the positive obligation to ensure a legislative - administrative national framework to fight Trafficking in Human Beings?
The Siliadin case was significant for establishing the obligation to inaugurate a legislative- administrative framework to prevent ‘ living conditions incompatible with human dignity. ’ 1 44 The Court ’ s ruling in this case symbolizes the link between ‘ historical concepts of forced labour, servitude and slavery to the modern ’ 1 45 occurrence and phenomenon of human trafficking. 1 46 Despite not mentioning the term THB itself, the Siliadin case held the promise for a much more explicit interpretation of Article 4 1 47 to encompass the terminology of Trafficking in Human Beings in the future and found its promise fulfilled in Rantsev.
The obligation of states party to the European Convention on Human Rights, to guarantee a legislative - administrative national framework to fight slavery, servitude, forced or compulsory labour was first established in the case Siliadin v France. This obligation inaugurated under Article 4 ECHR was a first and fundamental building block to aid more effective THB prevention, protection and prosecution in the future. Although the term THB was not employed by the Court in Siliadin, it is internationally recognized, and evident in Rantsev, that slavery, servitude and forced or compulsory labour in the modern day and age, qualify as Trafficking in Human Beings.148 In Siliadin the Court considered the scope of Article 4149 in regards to slavery, servitude and forced or compulsory labour. The Court referred to the classic and narrow definition of slavery in the 1926 Slavery Convention,150 which limits slavery to the parameters of an exercise of a genuine right of ownership over the individual and a reduction of the person’s status to an “object.”151 This stands in contrast to the ICTY judgment in Prosecutor v Kunarac, which adopted a much broader definition of what entails modern day slavery.152 The Siliadin judgment found that the treatment of the applicant, a young Togolese girl at the hands of Mr. and Mrs. B, ‘amounted to servitude, forced and compulsory labor’153 but fell short of slavery due to its narrow traditional definition.154 The reasoning of the Court was that despite the applicants deprivation of personal autonomy, evidence did not suggest that Mr and Mrs B had exercised a genuine right of ownership over her, meaning her reduction to a mere object.155
In this case, the Court ‘confirmed the principle that Article 4 entails a specific positive obligation to penalize and prosecute any act aimed at maintaining a person in a situation of slavery, servitude or forced and compulsory labour.’156 In contrast, the Rantsev judgment ruled that trafficking itself ran counter to the spirit and purpose of the Convention157 and would therefore fall within the ambit of the guarantees offered by Article 4 without the requirement to assess which of the three types of conduct was engaged.158 It is important to highlight that the prohibitions of slavery and servitude under Article 4 ECHR are absolute, with no derogation under Article 15 ECHR permissible,159 with exemptions to the prohibition of forced and compulsory labour.160
The fundamental nature of Article 4 ECHR is about the prohibition of human exploitation.161 Article 4 in combination with Articles 2 and 3 ECHR ‘enshrine the basic values of democratic societies making up the Council of Europe’162 member states, so they contain powerful guarantees and aspirations. The view that slavery is prohibited is now widely recognized under customary international law,163 governed by various international treaties and Conventions164 and a peremptory norms of jus cogens, whilst having erga omnes status.165 The interpretation that THB falls under Article 4 ECHR regardless of which type of conduct is engaged, widens the scope of Article 4, whilst increasing the positive obligations for contracting states to combat trafficking in human beings comprehensively.
1 US Department of State, ‘Moving Toward a Decade of Delivery - Protection: Trafficking in Persons Report 2011,’ http://www.state.gov/g/tip/rls/tiprpt/2011/166774.htm 16 October 2011
3 Rijken, C, & Koster, D, ‘A Human Rights Based Approach to Trafficking in Human Beings in Theory and Practice,’ May 2008, Social Science Research Network, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1135108 March 2011.
6 Rantsev v Cyprus and Russia (App. No. 25965/04)
7 Hol Anneke, ‘Trafficking in Human Beings and the Positive Obligations for States,’ Master thesis, Tilburg University 2010.
11 Siliadin v France (App. No. 73316/01)
12 Ibid, p. 28, § 91
17 Ibid, § 288, p. 62
21 United Nations Office on Drugs and Crime, ‘International Framework for Action to implement the Trafficking in Persons Protocol,’ http://www.unodc.org/documents/human-trafficking/Framework_for_Action_TIP.pdf
22 Sychov, Alyaksandr, ‘Human Trafficking - A call for global action,’ Globality Studies, No. 14, 22 October 2009, http://globality.cc.stonybrook.edu/wp-content/uploads/2011/03/no14.pdf
26 Rijken & Koster, p. 9
27 Ibid, p.9
28 Giammarinaro, Maria Grazia, OSCE Special Representative & Co-ordinator for Combating Trafficking in Human Beings, ‘Justice - Responsibility for the Future,’ European Forum Alpbach’s Political Symposium, 29 August 2011, http://www.osce.org/cthb/82007 September 2011.
29 Rijken & Koster
30 US Department of State, ‘Moving Towards a decade of delivery and protection’
32 Rijken & Koster
33 Office for Democratic Institutions and Human Rights (OSCE /ODIHR), ‘National Referral Mechanisms - Handbook,’ http://www.osce.org/odihr/13967 16 October 2011
37 GRETA, ‘Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Cyprus,’ 12 September 2011, http://www.coe.int/t/dghl/monitoring/trafficking/Docs/Reports/GRETA_2011_8_FGR_CYP_en_final.pdf 14 September 2011.
38 Council of Europe, ‘DH - DD(2010)376E : Communication from the Delegation of Cyprus in the case of Rantsev against Cyprus and the Russian Federation,’ 12 August 2010, https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=1644985&SecMode=1&Doc Id=1611134&Usage=2 15 September 2011
39 Council of Europe, Committee of Ministers, ‘Supervision of the Execution of Judgments of the European Court of Human Rights: 4th annual report 2010,’ http://www.coe.int/t/dghl/monitoring/execution/Source/Publications/CM_annreport2010_en.pdf 05 October 2011.
40 NGOs are: On the Road, ACCEM, ALC and La Strada International.
41 Christodoulou et al, ‘Trafficking for Labour in Cyprus,’ February 2011 http://www.ccme.be/fileadmin/filer/ccme/20_Areas_of_Work/10_Slavery___Anti-Trafficking/National_reports/2011-03- Cyprus_Report_GOING_BEYOND.pdf 20 September 2011
42 OSCE/ODIHR Handbook
43 United Nations Office on Drugs and Crime, ‘International Framework for Action to implement the Trafficking in Persons Protocol,’ http://www.unodc.org/documents/human-trafficking/Framework_for_Action_TIP.pdf 20 September 2011
44 Jacobs, White R & Ovey C, The European Convention on Human Rights, 5th edition, Oxford University Press, 2010, p. 594
48 Council of Europe, Council of Europe Convention on Action against Trafficking in Human Beings, Warsaw, 16 May 2005, http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=197&CM=1&CL=ENG 15 March 2011, Preamble
49 Hillary Rodham Clinton, ‘Remarks on the release of the 2011 Trafficking in Persons Report,’ June 27 2011, Washington DC, http://www.state.gov/secretary/rm/2011/06/167156.htm 05 October 2011.
50 Rantsev, p. 59, §277
51 Rijken & Koster
53 Siliadin,p. 43, § 289
55 Stephanie Farrior, ‘Rantsev v Cyprus and Russia, Introductory Note,’ American Society of International Law, Vol. 49, No. 2 (2010), pp. 415-473 http://www.jstor.org/stable/10.5305/intelegamate.49.2.0415 04 May 2011.
56 Dolidze, David in: Aim for Human Rights, Summary Report: Assessment of the Human Rights Impact of Anti-Trafficking Policies EU Consultation, Prague, Czech Republic, 21-25 June 2010, http://www.plri.org/sites/plri.org/files/assessing%20impact%20of%20anti-trafficking.pdf 03 October 2011
57 Rantsev, p. 59, §278
60 The Comprehensive Approach or its emergence is evident in for example: the Palermo Protocol, the CoE Anti-Trafficking Convention, EU Directive 2011/36/EU, as well as in US Tipp reports and academic literature
61 Palermo Protocol, In its preamble the PP calls for a comprehensive international approach in the countries of origin, transit and destination, which includes measures to prevent, protect and prosecute cases of THB.
62 CoE Anti Trafficking Convention
63 EU Directive 2011/36/EU
64 GRETA Report, p. 14, §32
65 Rijken & Koster
66 See Article 5(3) Anti-Trafficking Convention & UN Recommended Principles on Human Rights and Human Trafficking & EU Directive 2011/36/EU
67 Robinson, Mary, ‘Principles and Guidelines on Human Rights and Trafficking of the High Commissioner on Human Rights,’ E/2002/68/Add.1 (2002), point 1 and guideline 1.
68 Rijken & Koster, p. 8 &9
69 Ibid, p. 9
70 See the various Treaties & Conventions
71 Reilly McDonnell, Margaret, ‘Case Study of the Campaign to end “Modern - Day Slavery,” March 2007, US Coalition for Child Survival, http://www.child-survival.org/downloads/toolkit/Case-Slavery.pdf 20 May 2011, p. 3
72 Palermo Protocol, In its preamble the PP calls for a comprehensive international approach in the countries of origin, transit and destination, which includes measures to prevent, protect and prosecute cases of THB.
73 CoE Anti Trafficking Convention
75 Moeckli D, Shah S & Sivakumaran S, International Human Rights Law, Oxford University Press, 2010.
76 Farrier, Introductory Note
77 Private Communication with the Secretariat of the Council of Europe Convention on Action against Trafficking in Human Beings (GRETA and Committee of the Parties), Directorate General of Human Rights and Legal Affairs, 07 September 2011
82 Moeckli, p. 130
83 Ibid, pp. 130-131
84 Ibid, p. 130
89 Legality of the Threat or Use of Nuclear Weapons, 8 July 1996, International Court of Justice, Advisory Opinion, http://www.icj- cij.org/docket/files/95/7495.pdf , 20 September 2011, § 79
90 Moeckli, p. 113
91 Ibid, p. 129
92 The ICJ Opinion in the Barcelona Traction case, identified four clear examples of erga omnes norms which are the prohibition of aggression, genocide, slavery and racial-discrimination
93 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), 5 February 1970, International Court of Justice, Advisory Opinion, http://www.icj-cij.org/docket/files/50/5387.pdf 20 September 2011, § 33
94 Moeckli, p. 129
96 Article 1 ECHR
99 Jacobs, White & Ovey, p.84 100 Ibid
101 Ibid, p. 85
102 Jacobs, White & Ovey
104 Jacobs, White & Ovey
105 Carozza, Paolo, ‘Subsidiarity as a structural principle of international human rights law,’ http://www.asil.org/ajil/Carozza.pdf November 2011.
107 Jacobs, White & Ovey
108 Rantsev, p. 40, §196
109 Jacobs, White & Ovey
112 Ibid, p.2
113 Ibid, p. 49, §233
114 Netherlands Institute of Human Rights, ‘ECHR: Rantsev v Cyprus and Russia: Press release,’ Utrecht School of Law, http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/0/1a62063fc2c1e2ddc12576a10039ac36?OpenDocument 20 May 2011.
115 Rantsev, §14
116 Allain, Jean, ‘Rantsev v Cyprus and Russia: The European Court of Human Rights and Trafficking as Slavery,’ Human Rights Law Review, 2010, Oxford University Press, p. 549
117 Rantsev, §15
118 Ibid, §16
124 Farrior, Introductory Note
126 Allain, p. 549
127 Ibid, p. 549
128 Ibid, p. 549
129 Ibid, p. 549
130 Rantsev, § 2
132 Ibid, p. 74
133 Ibid, p. 75
137 Farrier‚Introductory note
140 Council of Europe, Council of Europe Convention on Action against Trafficking in Human Beings CETS No.: 197, 4 November 2011, http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=197&CM=8&DF=04/11/2011&CL=ENG 29 November 2011.
141 United Nations Treaty Collection, ‘Status of the Palermo Protocol,’ 29 November 2011, http://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XVIII-12-a&chapter=18&lang=en 29 November 2011.
142 Rantsev, p. 61, §284
143 Ibid, p. 61, §284
144 Netherlands Institute of Human Rights
149 Ibid, § 276
150 Ibid, § 276
151 Ibid, § 276
152 Prosecutor v Kunarac et al, Judgment, IT-96-23-T, 22 February 2001, ICTY, http://www.icty.org/x/cases/kunarac/tjug/en/kun- tj010222e.pdf 20 September 2011
153 Rantsev, § 279
155 Netherlands Institute of Human Rights
156 Rantsev, § 285
157 Ibid § 279
159 Jacobs, White & Ovey, p. 195
160 Ibid, p. 195
161 Allain, p. 551
162 Rantsev, §283
163 Jacobs, White & Ovey, p. 196
164 Ibid, p. 196