New Book on Judge Pinto de Albuquerque and the Progressive Development of International Human Rights Law

Triestino Mariniello (Liverpool John Moores University) has edited a book Judge Pinto de Albuquerque and the Progressive Development of International Human Rights Law, published with Brill | Nijhoff. This is the book abstract:

'This is the first English written book that includes the most significant opinions of Judge Paulo Pinto de Albuquerque delivered at the European Court of Human Rights. He was the President of the Committee on the Rules of the Court, the President of the Criminal Law Group of the Court and the focal point for the international relations of the European Court with Constitutional and Supreme Courts outside Europe. Previously he had worked as an anti-corruption leading expert for the Council of Europe.

As Full Professor at the Faculty of Law of the Catholic University of Lisbon, he has published, inter alia, 23 books in English, French, Italian, Portuguese, Russian, Spanish, Turkish and Ukranian and 65 legal articles and book chapters in those languages as well as Chinese and German. Since his appointment as a Judge in Strasbourg, he has authored 157 opinions that have significantly contributed to the development of international human rights law. The Judge’s decisions are regularly cited by academic scholars and practitioners in human rights law, public international law, criminal law, migration and refugee law.'

Liber Amicorum Linos-Alexandre Sicilianos on Fair Trial: Regional and International Perspectives

Iulia Motoc, Lubarda Branko, Maria Tsirli, Paulo Pinto de Albuquerque, Robert Spano have co-edited a Liber Amicorum Linos-Alexandre Sicilianos Procès Équitable: Perspectives Régionales et Internationales/Fair Trial: Regional and International Perspectives, published with Anthemis. The book contains contributions in French and English. The abstract of the book is here (translated and summarised by editor):

Linos-Alexandre Sicilianos served as a judge at the European Court of Human Rights from 2011 to 2020. He served as Section President, Vice-President of the Court, then was elected President of the Court in May 2019, until May last year. On the occasion of the end of his term as President, his colleagues, friends and collaborators wish to pay tribute to him and express their gratitude to him for his remarkable achievements in and contribution to the field of human rights law.

The edited volume in honour of Linos-Alexandre Sicilianos examines the notion of fair trial from a regional and international perspectives. While being open to a range of backgrounds and subjects, the book deals with subjects directly related to principles which occupy a pre-eminent place in a democratic society, notably the rule of law, as reflected in the right to fair trial and the right of access to a court. The existence of independent and impartial courts has always been the central point of Linos-Alexandre Sicilianos' judicial philosophy, both as an academic of international law and as a judge of the Court.

The table of contents can be found here.

New Book on Migration and the ECHR

Başak Çalı (Hertie School), Ledi Bianku (University of Strasbourg) and Iulia Motoc (European Court of Human Rights) have co-edited the new book Migration and the European Convention on Human Rights, published with Oxford University Press. A video of the online launch of the book earlier this month is available here. This is the abstract:

'This edited collection investigates where the European Convention on Human Rights as a living instrument stands on migration and the rights of migrants.

This book offers a comprehensive analysis of cases brought by migrants in different stages of migration, covering the right to flee, who is entitled to enter and remain in Europe, and what treatment is owed to them when they come within the jurisdiction of a Council of Europe member state. As such, the book evaluates the case law of the European Convention on Human Rights concerning different categories of migrants including asylum seekers, irregular migrants, those who have migrated through domestic lawful routes, and those who are currently second or third generation migrants in Europe.

The broad perspective adopted by the book allows for a systematic analysis of how and to what extent the Convention protects non-refoulement, migrant children, family rights of migrants, status rights of migrants, economic and social rights of migrants, as well as cultural and religious rights of migrants.'

And this is the table of contents:

Part I. Migration and the European Convention on Human Rights

1: Migration and the European Convention on Human Rights, Başak Çalı, Ledi Bianku, and Iulia Motoc

2: The Migrant Case Law of the European Court of Human Rights: Critique and Way Forward, Marie-Bénédicte Dembour

Part II. Right to Flee, Right to Seek Asylum, and the Right to Humane and Dignified Treatment

3: Theorising the (Intersectional) Right to Flee in the ECHR: A Composite Entitlement to Leave to Escape Irreversible Harm, Violeta Moreno-Lax

4: The JK Decalogue: A Paradigm Shift In Dealing With Asylum Cases In Strasbourg?, Ledi Bianku

5: Challenges to the Application of the Concept of Vulnerability and the Principle of Best Interests of the Child in the Case-Law of the ECtHR Related to Detention of Migrant Children, Ksenija Turkovic

6: The Contribution of Strasbourg Case-Law to the Effective Access of Undocumented Migrants to Minimum Social-Economic Rights: Towards a More Dignified Position of Vulnerable Undocumented Migrants in the European Space, Francesca Ippolito and Carmen Pérez González

Part III. Rights of Long-Term Migrants

7: The European Court of Human Rights and Removal of Long-Term Migrants: Entrenched Statism with a Human Voice?, Başak Çalı and Stewart Cunnigham

8: Cultural Rights of Migrants: Living Together in Dignity?, Bianca Selejan-Gutan

9: Islamophobia and the ECtHR: A Test-Case for Positive Subsidiarity for the protection of Europe's long term migrants?, Eva Brems

Part IV. Stages of Migration and the European Court of Human Rights

10: Stages of Migration and the European Court of Human Rights: A Case List, Kristina Hatas 

New Book on Torture, Inhumanity and Degradation under Article 3 ECHR

Natasa Mavronicola (University of Birmingham) has published the new book Torture, Inhumanity and Degradation under Article 3 of the ECHR. Absolute Rights and Absolute Wrongs with Hart Legal Publishing. This is the abstract:

'This book theorises and concretises the idea of 'absolute rights' in human rights law with a focus on Article 3 of the European Convention on Human Rights (ECHR). It unpacks how we might understand what an 'absolute right' in human rights law is and draws out how such a right's delimitation may remain faithful to its absolute character. From these starting points, it considers how, as a matter of principle, the right not to be subjected to torture or inhuman or degrading treatment or punishment enshrined in Article 3 ECHR is, and ought, to be substantively delimited by the European Court of Human Rights (ECtHR). Focusing on the wrongs at issue, this analysis touches both on the core of the right and on what some might consider to lie at the right's 'fringes': from the aggravated wrong of torture to the severity assessment delineating inhumanity and degradation; the justified use of force and its implications for absoluteness; the delimitation of positive obligations to protect from ill-treatment; and the duty not to expel persons to places where they face a real risk of torture, inhumanity or degradation.

Few legal standards carry the simultaneous significance and contestation surrounding this right. This book seeks to contribute fruitfully to efforts to counter a proliferation of attempts to dispute, circumvent or dilute the absolute character of the right not to be subjected to torture or inhuman or degrading treatment or punishment, and to offer the groundwork for transparently and coherently (re)interpreting the right's contours in line with its absolute character.'

Guest Post: Budinova and Chaprazov v Bulgaria – A guide to public statements degrading minorities

by Emma Várnagy (The Hague University of Applied Sciences)

Introduction

The Budinova and Chaprazov v Bulgaria judgment, issued on 16 February 2021, concerns anti-Roma statements made by a politician in Bulgaria.  Another judgment issued on the same day, Behar and Gutman v Bulgaria is about the anti-Semitic nature of the same statements. In this post the focus is on the former case, for the reasoning is more complex in this one. The question that the European Court of Human Rights (the Court or Strasbourg Court) had to address in these cases, is not whether the statements were directly attributable to the state, but instead, whether the refusal of the Bulgarian courts to accord redress to the applicants regarding the statements was in breach of positive obligations under Article 8 in conjunction with Article 14. The reasoning provides the reader with a crystal-clear guidance on how the context and severity of such statements are to be considered.

The facts of the case

Ataka (‘Attack’) is a political party, which, since its foundation in 2005, has steadily held around twenty seats in Bulgaria’s two-hundred-and-forty seat parliament, and since 2017 is part of the coalition forming the government. The party leader, Volen Siderov, is an author and journalist by profession and as such, he hosts a regular program on Ataka’s very own TV channel. As a politician he delivers various public speeches and is a regular interview subject.

In the months leading up to the 2005 elections Mr Siderov has, on at least 10 occasions, talked about ‘Gypsy-terror’ in his television program. Among others he talked about reverse racial bias describing a ‘huge wave of external and internal factors, which wish, which categorically wish and work to de-Bulgarianise Bulgaria. Work to destroy the Bulgarian nation as a nation. Work for its Gypsification (…)’ And he insisted that ‘this terror must be brought to a halt. This terror must be resisted. And I promise you that work is being done in that respect. Hard work is being carried out by Bulgarians who can no longer bear the terrorising of their compatriots and will do all they can for this to cease.’ (See excerpts in paragraph 11)

The applicants - themselves journalists and Bulgarian citizens of Roma origin - sought orders from the domestic courts to stop Mr Siderov from making these statements and to publicly apologise.

In the first hearing, the Sofia District Court listened to audio recordings of Mr Siderov’s statements. However, the minutes of the hearing did not include certain key passages, for example the quotes above. The applicants complained that the minutes were not complete and requested for rectification. The first instance court dismissed their claims. It argued that the statements, negative as they might be towards Roma, did not place them as a group in a less favourable position, nor did they constitute incitement to discrimination. Since the case, according to the domestic court, turned on the content of the statement, rather than its form of wording, Mr Siderov’s right to express an opinion prevailed over the claims brought under the 2003 Protection from Discrimination Act.

In their appeal the applicants argued that the District Court’s approach was formalistic and itself racially biased by turning a blind eye to the effect the statements had on society. However, the City Court upheld the judgment, and subsequently, the Supreme Court of Cassation declined to accept the appeal for examination. 

The Strasbourg Court judgment

The European Court of Human Rights was concerned with the manner in which the domestic courts reviewed the applicants’ complaints. This way the Court could look at the context in which the statements were made and assess their implication beyond their harm on the applicants as the individual victims. Acknowledging that the applicants were personally and directly affected by the domestic courts’ dismissal of their case, it examined whether the Bulgarian authorities properly discharged their obligations to respond adequately to discrimination on account of the applicants’ ethnic origin. (See § 41-42)

Another important aspect before delving into the reasoning is looking at third party submissions. The intervenors, The Greek Helsinki Monitor and the European Roma Rights Centre brought several arguments to point out the importance of countering stereotypes and the corresponding wide practice in various United Nations and Council of Europe bodies. The intervenors also emphasized the standpoint of the Committee on the Elimination of Racial Discrimination, namely that individuals may be seen as victims even in cases when offensive remarks are directed not against them personally, but the entire ethnic group of which they are members. And finally, the intervenors highlighted that however well developed the Court’s case-law regarding hate speech was under Article 10, protection from it under Article 8 has not yet been brought in line with the international trends just described.

Previous case-law and emerging principles

In its present judgment, the Court reviewed its previous case-law and distilled the essential guiding principles. The first two cases in which the Court was confronted with similar issues were declared inadmissible. They raised the question whether discriminatory statements were attributable to the State. In Pirali v Greece they were not and they concerned a large group, namely all immigrants in Greece, therefore the applicant could not be seen as personally affected. In L.Z. v Slovakia the measures were attributable to the State, but the complaints were of a public interest nature rather than showing a negative effect on the applicant’s private life.

The Court then referred to the Grand Chamber judgment of Aksu v Turkey, in which it laid down that ‘any negative stereotyping of a group, when it reaches a certain level, is capable of impacting on the group’s sense of identity and the feelings of self-worth and self-confidence of members of the group. It is in this sense that it can be seen as affecting the private life of members of the group.’ (See § 58) With this the Court acknowledged for the first time that recognizing the applicant’s victim status as a member of the group affected is an important element of effective protection against discrimination. For this recognition the judgment has been widely praised (eg. here and here). However, the judgment did not clarify any factors that influence the ‘certain level’ of the stereotyping.

It took three further similar cases (Perinçek v. Switzerland [GC], Lewit v. Austria, and Panayotova and Others v. Bulgaria) before the Court saw that, even though emerging principles could be derived from those previous judgments, it was worth spelling them out explicitly. (See § 61-62)

The Court listed the following considerations which may bear on the assessment of public statements about a social or ethnic group alleged to have affected the private life of its members within the meaning of Article 8 of the Convention (See § 63):

a) the characteristics of the group, including for instance its vulnerability and history of stigmatization

b) the content of the statement, in particular the degree of the negative stereotypes it conveys

c) the form and context of the statement, including the position of their author and their capacity to affect the core aspect of the group’s identity and dignity

d) the overall prevailing social and political climate at the time of the statements

Application of principles to the facts, and the relevance of the case

Applying these principles in the case of Budinova and Chaprazov the Court boldly highlighted the interplay of different factors and how they may reinforce each other. The starting point was acknowledging the disadvantaged and vulnerable position of Roma in Bulgaria. In the Court’s view the statements amounted to extreme negative stereotyping, which were enhanced by the fact that due to Mr Siderov’s many channels, they have likely reached a wide audience. Furthermore, his anti-Roma stance was a core element of his politics, which, seen in the light of the fact that shortly after the statements in question Ataka became the second largest party, amounted to a deliberate vilification of Roma. (See § 64-68) While emphasizing that each case has to be examined in light of its specific circumstances, it cannot but shine through the judgment that the Court affords great relevance to the precise implications of a statement, beyond its individual author and beyond the individual applicant. In this sense the ‘certain level’ requirement reveals to be very sensitive to the ‘capabilities’ of a statement, which demands careful consideration if the domestic authorities are to comply with their obligations under the Convention.

The very lengthy consideration – 13 out of the 18-page-long reasoning – determined whether or not the complaint fell within the ambit of Article 8. This assessment decides the relative weight ascribed to the two rights, freedom of speech and freedom from discrimination. With this in mind, the Court was short and unanimous in their conclusion about the domestic authorities’ balancing exercise. Since the domestic courts essentially ignored any indicators that Mr Siderov’s statements may justify hatred towards Roma and did not engage in meaningful assessment of the circumstances the Strasbourg Court found a breach of Article 8 in conjunction with Article 14.

Commentary

The Court in this judgment goes beyond the usual reiteration of previous case-law and relevant principles. It makes a gesture, on the one hand, of bringing the case-law in line with international ‘best practice’ as highlighted by the third-party intervenors. On the other hand, the gesture is to summarise, lay down and clarify in one place the ‘how to’ of assessing the context of discriminatory public remarks. The importance of this cannot be overemphasised.

First and foremost, in discrimination cases, the sheer number of applications may be indicative of a systemic issue, which in turn needs a systemic approach to remedying it. The Court itself has acknowledged this connection in its education segregation cases (see post on these eg. here, here and here) and has made some remarks to the alarming number of applications from Roma victims of  ill-treatment in police custody in several of its judgments. By choosing this present case to summarily clarify how the context and severity of discriminatory attitudes are to be considered under Article 8, the Court conveys a strong message regarding the effectiveness of protection from discrimination. Second, it is extremely helpful for potential victims and their attorneys to understand what types of considerations the domestic courts are expected to carry out in accordance with the Convention. Being able to prepare evidence that fits into this framework will help strengthen their case and accordingly allow for stronger protection of their rights. Finally, clarifying the applicable principles may also be an attempt from the Court to ease its own case load, inasmuch as the accessibility and wider awareness of the Court’s case-law has a strong effect on achieving this goal.

Whether we look at this judgment as a checklist for domestic courts, serving up the homework on a silver plate to legal practitioners, researchers and law students, or an attempt to ease the Court’s case load, it is an absolute win-win scenario. This courteous gesture of putting precedent and principles in order would be definitely welcome in some other areas of discrimination where the Court has long been called to improve its case-law.

Conference ECHR - Beyond a Treaty

On 27 May, Utrecht University is holding an online conference titled The European Convention on Human Rights: Beyond a Treaty. The conference explores the ECHR, beyond its formal treaty character, as an inspirational and aspirational source of human rights. Concerning the former, it will look at the practice of application of the ECHR as a constitutionally domesticated source of inspiration and gap-filler by entities not party to the Convention. This includes the EU, Bosnia and Herzegovina and Kosovo. Second, the conference aims to scrutinise instances where domestic courts may have employed the ECtHR’s case-law to justify social aspirations towards the advancement of human rights that may go beyond the minimum standards set by the Court, and instances where domestic courts may have deliberately chosen to minimise the Strasbourg standards.

The conference is organised on the occasion of the 40th anniversary of the Netherlands Institute of Human Rights (SIM) in a joint collaboration with the Netherlands Network of Human Rights (NNHRR), the Montaigne Centre for Rule of Law and Administration of Justice, and Utrecht Centre for Accountability and Liability Law.

Here is the full programme of the conference:

Introduction: Kushtrim Istrefi and Claire Loven (13.00 – 13.15)

Panel 1: ECHR as an inspirational source of human rights (13.15 – 14.45)

Chair: Rick Lawson, Leiden University

ECHR in the EU legal order
Speaker: Ineta Ziemele, Judge at the Court of Justice of the European Union (former President of the Latvian Constitutional Court and ECtHR judge)

Bosnia and Herzegovina’s constitutional domestication of ECHR through the Dayton Peace Agreement
Speaker: Antoine Buyse, Utrecht University

Constitutional domestication of ECHR in Kosovo
Speaker: Kushtrim Istrefi, Utrecht University

Break (14.45 – 15.00)

Panel 2: ECHR as an aspirational source of human rights? (15.00 – 16.45)
Chair: Claire Loven, Utrecht University

Defining minimum standards of Convention protection by the ECtHR
Speaker: Janneke Gerards, Utrecht University

Under the bar: explaining deliberate choices to minimize the Strasbourg standards
Speaker: Catherine van de Heyning, Antwerp University

The role of the ECHR in a ‘culture of justification’: the example of Urgenda v. the Netherlands
Speaker: Ingrid Leijten, Leiden University

The application of the ECtHR jurisprudence by domestic courts in cases concerning the immunity of international organisations
Speaker: Luca Pasquet, Utrecht University

Concluding remarks: Luca Pasquet (16.45 – 17.00)

Information on how to attend the online event will be provided in the first week of May and will be posted on the ECHR Blog.

Webinar on the Extraterritorial Application of Human Rights Law

On 15 March, the British Institute of International and Comparative Law is organising a webinar on the Latest Developments in the Extraterritorial Application of Human Rights Law. The speakers of the event are Lea Raible (Grasgow University), Aurel Sari (Exeter University) and Ralph Wilde (University College London). The event will be chaired by Shaheed Fatima QC (Blackstone Chambers).

Here is the description of the event by the organisers:
The question of whether and to what extent human rights obligations apply extraterritorially, notably in situations of armed conflict, continues to be hugely contested. This event will review some important recent developments, beginning with the European Court of Human Rights judgment in Georgia v. Russia (II), delivered on the 21st of January. Speakers will also discuss last year's communications before the CRC Committee concerning the repatriation of children whose parents are linked to terrorism activities, as well as, in the UK, the controversial Overseas Operations (Service Personnel and Operations) Bill, which passed an important legislative stage on the 20th of January.

Participation in the webinar is free of charge. The information about the registration is here. 

Guest Post: VCL & AN v UK - Prosecution of Trafficking Victims Breaches Article 4 ECHR

by: Colin Gregory (University of Leeds)

Introduction

On 16 February 2021, the European Court of Human Rights (ECtHR) assessed for the first time the prosecution of trafficking victims under Article 4 of the European Convention (ECHR), in VCL and AN v United Kingdom. Two Vietnamese nationals were charged, convicted and detained as children for producing cannabis. Their criminalisation occurred despite both being conclusively recognised as victims of trafficking (VCL before conviction, AN after), and despite awareness that cannabis farmers are often exploited children (as both were). This commentary summarises the unanimous judgment that the UK breached its positive obligation to take operational measures to protect VCL and AN. It begins by explaining the facts, then looks at the legal reasoning in respect of Article 4 ECHR, and finally considers future implications. This is a welcome judgment, highlighting failings in the UK’s criminal justice system dating back to 2009 and which the UK disputed right up to 2021. The judgment’s focus on positive operational measures, though, neglects blurry lines between Article 4 obligations.

 

Facts of the Case

VCL was arrested in May 2009, when he was found alone with more than £130,000 worth of cannabis plants. He confirmed at interview that he was 15 and did not know the plants were illegal but was nonetheless charged with producing a controlled drug. In August, VCL pleaded guilty on advice from counsel, having initially instructed he was innocent. The UK’s Competent Authority (its expert body responsible for making trafficking determinations) conclusively decided in November that VCL had been trafficked. The prosecutor reviewed the case in December and chose to proceed as: ‘the offences were extremely serious, there was no defence of duress and no clear evidence of trafficking.’ (para. 14). VCL considered changing plea but, having again been advised against doing so, maintained he was guilty. He was sentenced to 20 months’ detention in a young offenders’ institution in January 2010. The prosecutor argued VCL was not a trafficking victim, as evidenced by his being: ‘found in an ordinary house with a mobile phone, credit and money.’ (para. 17)

 

AN was arrested at a cannabis factory on 21 April 2009. He was also charged with producing a controlled drug. AN incorrectly gave his year of birth as 1972 (he was actually 17, born 1992, as he confirmed on 30 April). He said he had not known the plants were illegal and had feared he could be killed if he stopped working. He pleaded guilty in July following advice and was sentenced in September to 18 months’ detention. In November 2010, he was conclusively recognised as a trafficking victim. A prosecutor reviewed AN’s case in June 2011 in light of the Competent Authority’s trafficking decision. It was maintained that, given his inconsistent evidence and possession of cash and a phone, AN was not a trafficking victim and the public interest required prosecution.

 

Domestic litigation

Both VCL and AN appealed against the convictions. Their cases were joined together and, on 20 February 2012, dismissed by the UK’s Court of Appeal. That Court considered the UK’s obligations under Article 26 of the Council of Europe’s Anti-Trafficking Convention (ECAT), which requires that a contracting State: ‘in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.’ It found that Article 26 required only prosecutorial discretion not to penalise trafficking victims. There was accordingly no need to extend the pre-existing duress defence or provide trafficking victims with immunity against prosecution. The Court of Appeal saw its own role as restricted to reviewing whether the prosecutions constituted an abuse of process.

 

After being refused permission to appeal to the UK’s Supreme Court, VCL and AN applied to the ECtHR in November 2012. The delay of more than 8 years until judgment was due in part to VCL requesting a domestic review of his conviction in December 2013. VCL’s case returned to the UK’s Court of Appeal and was again dismissed, on 9 February 2017. That Court determined that the public prosecutor had not been bound by the Competent Authority’s decision and, in any event, there was no nexus between trafficking and VCL’s offence to extinguish criminal liability. By then the UK Modern Slavery Act 2015 had come into force, providing a statutory defence for trafficking victims but without retrospective effect.

 

The Court’s Judgment - Principles

The UK argued inadmissibility under Article 34 ECHR because VCL and AN were not ‘victims’ following the public prosecutor’s and Court of Appeal’s findings. The ECtHR rejected this argument due to clear trafficking indicators and the conclusive trafficking decisions in both cases.

 

Re-affirming its Article 4 case-law, the ECtHR held that trafficking itself stands prohibited and that positive obligations include prevention, protection of victims, and investigation measures. Positive obligations flow from ECAT and its interpretation by its monitoring body, the Group of Experts on Trafficking in Human Beings (GRETA). Of these obligations, the ECtHR concentrated on the protective duty to take operational measures. This operational duty is triggered only when a State was, or should have been, aware: ‘of circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being, trafficked.’ (para. 152). A State must then remove the identified person from the situation of risk. This may require facilitating identification of victims and aiding their recovery, though operational measures must not constitute a ‘disproportionate burden’ (para. 154) bearing in mind the difficulty of policing modern societies. This is similar to the Osman duty under Article 2 ECHR, which explains when police must take measures to protect life against private criminal acts.

 

These principles were applied to the new context of prosecuting trafficking victims. The ECtHR found no general requirement not to prosecute; however, if adult victims were compelled to commit an offence the authorities should be entitled, but not obliged, not to prosecute. Child victims need not prove they were compelled to offend but still there is no absolute requirement not to prosecute. Importantly, the ECtHR explained that prosecution of trafficking victims may, despite discretion for States under international law, breach Article 4’s positive operational duty:

 

It is axiomatic that the prosecution of victims of trafficking would be injurious to their physical, psychological and social recovery and could potentially leave them vulnerable to being re-trafficked in future. Not only would they have to go through the ordeal of a criminal prosecution, but a criminal conviction could create an obstacle to their subsequent integration into society. In addition, incarceration may impede their access to the support and services that were envisaged by the Anti-Trafficking Convention. (para. 159)

 

Further, and of most significance looking forward, the ECtHR deemed early identification of victims to be: ‘of paramount importance’ (para. 160) for prosecutions to be Article 4 ECHR compliant. As victim status affects whether prosecution is in the public interest or evidentially viable, a trafficking assessment should be made by a competent body before a prosecution decision. This was thought all the more important in respect of children owing to their vulnerability. Crucially:

 

Once a trafficking assessment has been made by a qualified person, any subsequent prosecutorial decision would have to take that assessment into account. While the prosecutor might not be bound by the findings made in the course of such a trafficking assessment, the prosecutor would need to have clear reasons which are consistent with the definition of trafficking contained in the Palermo Protocol and the Anti-Trafficking Convention for disagreeing. (para. 162)

 

The Court’s Judgment – Application to the Facts

In VCL’s case, the ECtHR criticised the roles of the prosecutor and Court of Appeal at various points. At the time of arrest, there was already sufficient evidence about regular trafficking of Vietnamese minors into cannabis cultivation to demonstrate need for a trafficking investigation. The prosecutor was also, or should have been, aware of difficulties trafficked children face disclosing information. Therefore, VCL should not have been prosecuted in the absence of a trafficking assessment and, once identified as a trafficking victim, there were insufficient reasons to justify prosecuting. The ECtHR saw no cogent reason within the prosecutor’s account for disputing VCL’s conclusive trafficking decision, or for finding no nexus between his offence and trafficking. The Court of Appeal fell into error by following the prosecutor’s flawed reasoning.

 

Similar flaws appeared in AN’s case. Though he did not identify himself as a minor on arrest (as the ECtHR noted, he claimed to be 37 when 17 so it is surprising this was not queried), he gave sufficient information to indicate trafficking. In particular, he claimed to have been in a guarded factory locked from outside and to fear being killed if he stopped working. AN was, in any event, confirmed as a child 9 days after his arrest so there were clear trafficking indicators by that point. In reviewing AN’s case after the conclusive trafficking decision, the prosecutor gave no valid reason for departing from it. In dismissing AN’s appeal, the Court of Appeal relied on AN’s own failure to disclose trafficking, but that was contrary to the UK’s domestic policies confirming the State has a duty to identify victims, especially if prosecuting children.

 

In both cases, the ECtHR identified obvious trafficking indicators throughout, which the prosecutor and Court of Appeal gave no coherent reason to displace nor any reason why there was not a nexus between the trafficking and offending. The ECtHR concluded that operational measures should therefore have been, and were not, taken to protect VCL and AN. Ultimately, the Court concluded that both Articles 4 and 6 (right to a fair trial) had been violated. €25,000 was awarded to each for these breaches of the ECHR.

 

Commentary: a Blurry Distinction between Positive and Negative Obligations?

To recapitulate, though there is no general prohibition under the ECHR, (i) prosecutions of trafficking victims can cause harm, damage recovery and risk re-trafficking; (ii) early identification of victims is therefore vital, particularly for children; (iii) a competent trafficking decision concerning a potential victim should be made before a prosecution decision; (iv) a public prosecutor is not bound by a trafficking decision but must give cogent reasons if departing from it. Obligations (iii) and (iv) are framed as positive operational measures.

 

Judge Martens explained many years ago, in Gül v Switzerland: ‘Negative obligations require member States to refrain from action, positive to take action.’ (dissenting opinion, para. 7). One may think, on the face of it, that criminal prosecution clearly requires the State to refrain from acting. Simply, a State must not criminalise if doing so would breach Article 4 ECHR. However, Article 4 does not tend to describe direct State acts. The State does not usually engage itself in slavery or related practises any longer, (though States are still at times complicit as can be seen, as can be seen for example in the ECOWAS Court judgment of Koraou v Niger). It is also obvious that a criminal prosecution does not, by itself, constitute Article 4 harm.

 

Nevertheless, the ECtHR brought prosecution within the ambit of Article 4 precisely because prosecutions of trafficking victims can lead to harm, damage recovery and risk re-trafficking. Hence, it was not dealing here, as with prior trafficking judgments, only with a State’s failure to act or to criminalise. Instead, the issue was harmful prosecution by the State. If a victim was prosecuted and punished by the State for acts directly consequent on trafficking, we ought to ask whether the State to some degree caused or exacerbated Article 4 harm. A focus solely on positive operational duties neglects this. The ECtHR’s conclusion was, essentially, that the UK authorities failed to take operational measures to protect VCL and AN from prosecution by those same authorities. Intuitively this seems misguided and indicative of blurry lines between negative and positive duties. It does not adequately describe the UK’s responsibility for the harm suffered by VCL and AN. The ECtHR limited the damages awards because the ECHR violations ‘were essentially procedural in nature’ (para. 219), whereas the awards could have been higher had the UK’s direct responsibility for causing harm been explicitly recognised.

 

Negative obligations were not considered in the judgment, but the scope of positive obligations was. In addition to (i) ‘operational measures,’ both applicants had also alleged breaches of positive obligations to protect via an effective (ii) ‘legal and administrative framework,’ and to prevent trafficking by (iii) ‘procedural investigation.’ Only (i) was considered substantively. In respect of (ii), the ECtHR found it had: ‘no competence to interpret the provisions of the Anti-Trafficking Convention or to assess the compliance of the respondent State.’ (para. 113). Regarding (iii), alleged failures to investigate those responsible for trafficking VCL and AN were left undetermined at the European level as they had not been determined before the domestic courts. The ECtHR instead focused on the public prosecutor’s and Court of Appeal’s oppositions to decisions by the Competent Authority, which were deemed to be operational errors. It appears likely, however, that future cases will require substantive assessment of each of the positive obligations in the context of the prosecution of trafficking victims. Indeed, the ECtHR confirmed the importance of effective trafficking investigations and related domestic frameworks warrant scrutiny under Article 4 ECHR.

 

Conclusion

This is a hugely significant judgment for all Council of Europe member States. Protection against criminalisation represents the ‘beating heart’ of human rights obligations in the trafficking context. The judgment necessitates early identification of trafficking victims and requires States to investigate effectively before prosecuting potential victims. This will help to protect against further harm and reduce re-trafficking risks.

ECHR Webinars on Migration, Climate Change, European Consensus and Free Speech

For already a year, online teaching and conferences have become a new normal. Several scholars have already examined the pros and cons of this development (see e.g. here and here). Perhaps the most positive aspect relates to the fact that important academic events have become more accessible and environmentally friendly. 

In the coming days, you can attend four interesting events on ECHR law that will take place online but are organised by different institutions based in the UK, the Netherlands, Cyprus and the United States. They are open to everyone.

Webinar on Climate Change: On 3 March former ECtHR Judge Helen Keller will give the annual Lord Irvine lecture at Durham University on ‘Climate Change in Court:Overcoming Procedural Hurdles in Transboundary Environmental Cases’. The full description of the event and registration details can be found here.

Webinar on Migration: Another important event is taking place on 9 March. Utrecht University is holding a webinar entitled ‘Beyond Hirsi: The Interception of Migrants at Sea’. The webinar brings scholars and practitioners from human rights law and the law of the sea to discuss intricate issues of migration at sea. It is organised by our colleagues from the Netherlands Institute of Human Rights (SIM) and the Netherlands Institute for the Law of the Sea (NILOS). Speakers include Seline Trevisanut and Salvo Nicolosi from Utrecht University, former ECtHR Judge Paulo Pinto de Albuquerque, Andrea Saccucci from Università della Campania Vanvitelliand and Hélène Trigoudja, Member of the UN Human Rights Committee. Registration details can be found here.

Webinar on Free Speech: On 11 March, the University of Central Lancashire Cyprus is holding a roundtable entitled “Does the ECHR really protect the ‘right to offend, shock or disturb’? A critical assessment of the European Court of Human Right's hate speech case law” delivered by Jacob Machangama. The full description of the event and registration details can be found here.

Webinar on European Consensus: On 18 March, the NYU Journal of International Law and Politics is hosting the webinar 'The Tyranny of Choice and the Interpretation of Standards: Why the European Court of Human Rights Uses Consensus'. Speakers of the event include Daniel Piet, Anne van Aaken, Kanstantsin Dzehtsiarou and Laurence Burgorgue-Larsen. More information about the event and registration here.