Exploring Human Rights Violations and Legal Responses

Introduction

This essay discusses the decision of the European Court of Human Rights (ECtHR) in Rantsev v Cyprus and Russia. It critically discusses the right to life and right to prohibition of slavery and forced labour as it is engaged in the issue of human trafficking explained in Rantsev. Human rights recognised by a number of international and regional human rights treaties, including the European Convention on Human Rights (ECHR) are violated through victimisation of individuals by human trafficking. In Europe, apart from the ECHR, which protects individual human rights in the context of human trafficking, there are other measures, important amongst which are Convention on Action against Trafficking in Human Beings 2005 and 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. If you are seeking guidance on HRM dissertation help, understanding these legal frameworks along with their implications offer the most valuable perspectives.

Human trafficking relates to the right of life (as will be discussed in this essay); therefore, there is a positive obligation on states to effectively investigate cases involving human trafficking within their territories as noted by the European Court of Human Rights (ECtHR) in Rantsev v Cyprus and Russia, and reiterated in S.M. v. Croatia. S.M. v. Croatia echoes the findings of the ECtHR in Rantsev, because the court has said that states have positive obligations to conduct effective investigation into any case involving trafficking in human beings and referred this case to the Grand Chamber.

Article 2 of the ECHR protects right to life and there is now jurisprudence developed by the ECtHR which links human trafficking to right to life violation. Much of the court’s jurisprudence is now found in Article 4, which is the prohibition of slavery. This essay discusses the Rantsev decision in the context of human trafficking and links this to the right to life protection under Article 2 and protection against slavery under Article 4. Rantsev is an important case, which was decided by a chamber of seven judges of the ECtHR. The recent referral of S.M. v. Croatia to grand chamber in the ECtHR reiterates the significance of the Rantsev decision in shaping the court’s response to human rights violations involved in human trafficking and the state’s positive obligations to take effective measures in such cases.

Human trafficking and human rights

Human trafficking has been defined in the Palermo Protocol as the recruitment or transportation of persons by using threat or use of force. As such, human trafficking may involve abduction of victims being trafficked, or use of fraud or deception to ensnare victims into the net of human traffickers. Article 3(a) also mentions that human trafficking involves exploitation of victims through prostitution, forced labour, slavery or the removal of organs. As this definition indicates, human trafficking is a serious issue relating to human rights, because it includes among other things, violation of human rights through sexual exploitation, forced labour, slavery, servitude and the removal of organs. Human trafficking has serious implications for human rights protection because the perpetration of trafficking affects the victim’s right to life as well as other rights; Roza Pati explains it well when he says that human trafficking leads to the “dehumanisation of individuals.” Individuals who are

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1. Rantsev v. Cyprus and Russia, No. 25965/04 of 7 January 2010.
2. UN OHCHR, ‘Human Rights and Human Trafficking’ (UN OCHR Fact Sheet 32) accessed < http://www.ohchr.org/Documents/Publications/FS36_en.pdf>
3. Rantsev v. Cyprus and Russia, No. 25965/04 of 7 January 2010.
4. S.M. v. Croatia 60561/14 (Chamber judgment of 19 July 2018).
5. Ibid.
6. Article 3(a) of Palermo Protocol.
7. Ibid.
8. 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.

trafficked are subjected to enslaved labour or prostitution. All of these are violations of the human rights of the victims of trafficking.

The Rantsev case

The facts of the Ranstev case are related to the trafficking of a young girl from Russia. 20-year-old Oxana Rantseva was recruited as an artiste in Russia and brought to Cyprus in 2001 to work in a cabaret. She was found dead in less than a month after being brought to Cyprus. She died from a fall from the balcony of her apartment where the cabaret owner had kept her. The circumstances surrounding her death were death were suspicious as accepted by the court in Cyprus; but there were gaps in the police investigation despite the requests of the victim’s father (the applicant in Rantsev), who had requested Russian authorities to obtain testimony from two Russian women had worked in the same cabaret and were sexually exploited. The Russian police also failed to take the testimonies of the women. Eventually, the applicant brought the case against both Cyprus and Russia before the ECtHR. He alleged that his daughter’s right to life under Article 2 of the ECHR was violated as well as other human rights provisions such as Article 3 which protects right against torture and inhuman or degrading treatment, Article 4, which protects against slavery and forced labour), Article 5, which protects liberty and security of person, to name a few. The ECtHR ordered against Cyprus and Russia. Russia did plead that the claim against it was inadmissible due to the absence of “actual authority” over Cyprus territory. The Court held that Russia failed to protect the victim from trafficking and to effectively investigate allegations of trafficking in Russia and so the case was admissible was against it; however, the court held that Russia was not liable for Article 2 violation because the victim’s death occurred outside its territory.

With respect to the obligation of Cyprus under Article 2, the ECtHR noted that states have a positive obligation to protect the right protected under Article 2 of the ECHR. This obligation includes a procedural obligation to conduct an effective investigation in situations where the individual’s death occurs in suspicious circumstances, as it did in the case of the applicant’s daughter who appears to have died in a fall while trying to escape from her employer. The ECtHR held that effective investigation is conducted with the purpose of securing the effective “implementation of the domestic laws which protect the right to life. In this case the court found that there were a number of discrepancies and deficiencies in the investigation conducted by the Cypriot authorities; on this basis the ECtHR held that Cyprus violated Article 2 of the ECHR because it failed to conduct an effective investigation into the death of the applicant’s death under mysterious circumstances.

The notion that the state has positive obligations to effectively investigate cases of human trafficking that was emphatically laid down in Rantsev has a history that goes to decisions prior to Rantsev taken by the International Criminal Tribunal for Yugoslavia (ICTY) in Prosecutor v. Kunarac, Kovač and Vuković. In this case, the ICTY identified the factors that may be relevant to defining human trafficking crime, which include physical and psychological control, of the victim, measures taken to prevent or deter escape, the use or threat of force, cruel treatment and abuse, control of sexuality and forced labour. It is

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9. Ibid.
10. Rantsev v. Cyprus and Russia, No. 25965/04 of 7 January 2010.
11. Ibid.
12. Ibid, para. 232.
13. Ibid.
14. Prosecutor v. Kunarac, Kovač and Vuković 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.
15. Goran Sluitor, ‘Chapeau elements of crimes against humanity in the jurisprudence of UN Ad Hoc

important to consider this earlier developed jurisprudence to understanding how the ECtHR has developed its own response to human trafficking because the ECHR as such does not contain any references to human trafficking. Rather what the ECtHR has done in Rantsev is to link the issue of human trafficking to Articles 2 and 4, among others. This aligns with the ICTY decision in 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 Kunarac, Kovač and Vuković case. At the centre of this jurisprudence is the understanding that human trafficking violates a victim’s right to life and a host of other rights including the right against slavery that are recognised by international human rights law.

The Rantsev case has also been instrumental in exposing the link between the networks of organised criminal activity around human trafficking, including forced prostitution, sex rings, forced organ theft, to name a few; in particular, the case exposed the continuing practice of modern slavery through human trafficking. In doing so, the ECtHR specifically referred to the findings of the ICTY in Kunarac, Kovač and Vuković. An important point is that the ECtHR concluded that the traditional concept of slavery and its attendant right of ownership over human beings against their will, is now perpetuated through a more contemporary form of slavery in the form of human trafficking, where the person in control exercises control over the victim. This has clear implications for the right of life and the right against slavery and forced labour. The court also listed seven elements of human trafficking which include: physical and psychological control over the victim; measures taken by perpetrators to prevent or deter escape by the victim; the use or threat of use of force; assertion of exclusivity of control; meeting out of cruel treatment and abuse; control of sexuality and lack of agency over the victim’s body and life; and forced labour. Each of these elements can be linked to right of life as protected by the ECHR. The specific manner in which Article 2 is engaged in human trafficking is also explained by the ECtHR in the context of the positive obligations of the state in Rantsev. The ECtHR has noted that as per the provisions of Article 2, which protects the right to life, the state has the responsibility to take appropriate steps to safeguard the lives of those within its jurisdiction.

Critical appraisal of the role of the ECtHR

On one hand, the Rantsev decision shows that the ECtHR has played a positive role in protecting the victims of human trafficking by linking procedural violations in Article 2 and positive obligations of the state under Article 2. On the other hand, there are instances after the Rantsev decision where the ECtHR has failed to keep to the jurisprudence laid down by it in Rantsev, leading to some criticism of the court. For instance, in M and others v Italy and Bulgaria, the Court refused to consider the engagement of Article 4 and draw a link between slavery and trafficking although it found that there was an ineffective investigation into the allegations of ill-treatment of the victim by the alleged perpetrators. Again, in F.A. v the United Kingdom, the court refused to admit the case of a Ghanaian national who alleged

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16. tribunals’, in Leila Nadya Sadat, Forging a Convention for Crimes against Humanity (Cambridge: Cambridge University Press 2011) 119.
17. Rantsev v. Cyprus and Russia, No. 25965/04 of 7 January 2010, [94].
18. Ibid.
19. Ibid, [50]-[51], para. 218.
20. Philip Leach, Taking a Case to the European Court of Human Rights (Oxford: Oxford University Press 2011) 73.
21. M and others v Italy and Bulgaria No. 40020/03 of 31 July 2012.
22. F.A. v the United Kingdom No. 20658/ 11 of 10 September 2013.

that she was a victim of human trafficking who was brought into the UK and sexually exploited.

It has been said that the ECtHR grounded its decision in Rantsev in that which is the essence of human rights, that is, human dignity. Although the court used Article 4 to bring human trafficking within the scope of the ECHR, it is important to note the link between the positive obligations of the state under Article 4 ( for combatting trafficking), and under Article 2 (for investigating suspicious deaths that may be linked to human trafficking). Therefore, it can be agreed that human dignity is at the source or base of this decision by the ECtHR.

However, the case also exposes the gaps in the ECHR because it does not specifically mention human trafficking or respond to it, leaving the court to deal with the issue by resorting to other provisions. It can be said that Rantsev has revealed the human costs of sex tourism and has also indicated that the ECtHR is willing to respond to the serious issue of human trafficking for its link to violations of human rights. However, there is a question regarding the ability of the ECtHR to adjudicate over human trafficking related issue under Article 4. The problem with the court’s approach to deal with human trafficking under Article 4 of the ECHR is that there are significant differences between human trafficking and slavery; these are legal distinctions that the court is critiqued for not having engaged with properly in Rantsev. Both slavery and human trafficking are forms of human exploitation but they are not always one and the same. Indeed, there is a need to engage with the concept of human trafficking not just within the scope of Article 4 but also beyond because human trafficking is a wide issue and while it may include enslavement, there are other components to the issue. As noted by the Australian High Court, “those who engage in the traffic in human beings are unlikely to be so obliging as to arrange their practices to conform to some convenient taxonomy.” Therefore, the failure to engage with the concept of human trafficking beyond the scope of Article 4 brings with it the problem of dealing with the issue in different cases where Article 4 may not be attracted but an individual may have been a victim of human trafficking. Two cases already discussed above illustrate this argument: M and others, and F.A. v the United Kingdom, both of which saw the courts refusing to draw a link between the exploitation of the individuals involved in the cases and the existence of human trafficking. In the latter case, the evidence of sexual exploitation also was not enough to let the court consider the possibility of sexual exploitation.

The more recent case of LE v Greece, exposes these problems and is said to have been a disappointment after the Rantsev decision, which had raised expectations from the ECtHR because that was the first case in which the court had ruled with relation to human trafficking. However, the issues with linking human trafficking to slavery in Article 4 that was the line of reasoning of the court in Rantsev, is said to have led to the problem with the

decision in LE v Greece. In particular, there are inconsistencies with the scope of States’ positive obligations in the area of prevention and victim protection. While LE v Greece allowed the court to once again link human trafficking to slavery, however, the court also held that in order for the state’s positive obligation to arise there has to be an explicit statement by migrants that they are victims of human trafficking. This places an onerous and difficult burden on those who are trafficked and does not ensure that the states create more effective mechanisms for protecting victims of human trafficking.

Conclusion

While Rantsev is an important decision of the ECtHR in the context of human trafficking and the positive obligations of the state to investigate the deaths of individuals who may be victims of human trafficking, there are still a lot of questions that are yet to be answered. In particular contextualising human trafficking within the scope of Article 4 of the ECHR does present some problems and does not allow the court to deal with human trafficking as effectively as required. Some of the decisions post the Rantsev case illustrate this point and expose these gaps in the effectiveness of ECHR as well as the ECtHR to deal with human trafficking. The recent case of LE v Greece indicates that more needs to be clarified on how ECtHR can respond to the issue of human trafficking within the scope of ECHR. The lack of clarity in LE v Greece may be due to the Rantsev decision; the court may need to elaborate more on what the positive obligations of the states are under Article 4.

Take a deeper dive into Examining the Discrepancy Between Perpetrator Punishment with our additional resources.

Cases

F.A. v the United Kingdom No. 20658/ 11 of 10 September 2013.

LE v Greece Application No. 71545/12, 21 January 2016.

M and others v Italy and Bulgaria No. 40020/03 of 31 July 2012.

Prosecutor v. Kunarac, Kovač and Vuković Judgment, Case No. IT-96-23-T & IT-96-23/1-T, 22 February 2001

Rantsev v. Cyprus and Russia, No. 25965/04 of 7 January 2010.

S.M. v. Croatia 60561/14 (Chamber judgment of 19 July 2018).

The Queen v Tang [2008] HCA 39, para 29.

Books

Sluitor G, ‘Chapeau elements of crimes against humanity in the jurisprudence of UN Ad Hoc tribunals’, in Leach P, Taking a Case to the European Court of Human Rights (Oxford: Oxford University Press 2011).

Leila Nadya Sadat, Forging a Convention for Crimes against Humanity (Cambridge: Cambridge University Press 2011).

Journals

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.

Farrior S, ‘Human trafficking violated anti-slavery provision: introductory note to Rantsev v. Cyprus and Russia, European Court of Human Rights judgment of 7 January 2010’ (2010) 49 (2) International Legal Materials 415.

Milano V, ‘The European Court of Human Rights’ Case Law on Human Trafficking in Light of LE v Greece: A Disturbing Setback?’ (2017) 17(4) Human Rights Law Review 701.

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.

van der Vilt H, ‘Trafficking in Human Beings, Enslavement, Crimes Against Humanity: Unravelling the Concepts’ (2014) 13 (2) Chinese Journal of International Law 297.

Others

UN OHCHR, ‘Human Rights and Human Trafficking’ (UN OCHR Fact Sheet 32) accessed < http://www.ohchr.org/Documents/Publications/FS36_en.pdf>