European Court Delivers Judgment in Landmark Human Trafficking Case
Rantsev v Cyprus and Russia [2010] ECHR 25965/04 (7 January 2010)
In a landmark judgment the European Court of Human Rights unanimously ruled that human trafficking fell within the scope of art 4 (prohibiting slavery, servitude and forced labour) of the European Convention. The Court clarified the positive obligations upon States to investigate allegations of trafficking and to implement measures to prevent and protect people from human trafficking.
Facts
The applicant, a Russian national, brought a complaint against the Republic of Cyprus and Russia in the European Court of Human Rights in relation to the death of his 20 year old daughter.
The applicant’s daughter, Oxana Rantseva, went to Cyprus to work as a cabaret artiste. It is well known that cabaret artistes in Cyprus are sexually exploited and often work as prostitutes. After only a couple of weeks Rantseva wanted to return to Russia. The manager of the cabaret took her to the local police station claiming she was illegally residing in Cyprus. The police advised that Rantseva had a valid working visa and asked the manager to bring her back to the police station the next morning for further questioning. The manager took her to an apartment for that night. Rantseva tried to escape through the balcony, however, fell to her death.
The District Court in Cyprus held that Rantseva died in ‘strange circumstances’ while attempting to escape but there was no evidence to suggest any criminal liability. Rantseva’s body was returned to Russia and upon the applicant’s request a separate autopsy was conducted. The forensic examination and the Russian authorities concluded the circumstances surrounding the death were unestablished and requested the Cypriot government to conduct further investigations.
In October 2006, after numerous communications between the countries, the Cypriot Ministry of Justice confirmed that further investigations would not be undertaken. They stated that the inquest into Rantseva’s death was completed in December 2001 and that this verdict was final.
The applicant alleged violations of the European Convention arising from:
- the failure of the Cypriot authorities to investigate his daughter’s death and to protect her while she was living in Cyprus; and
- the failure of the Russian authorities to investigate the alleged trafficking and subsequent death and to protect her from the risks.
Decision
Article 4 of the European Convention provides that no one shall be held in slavery or servitude or be required to perform forced or compulsory labour.
Trafficking is not expressly referred to in the European Convention and has only ever been considered by the Court on one prior occasion (see Siliadin v France [2005] ECHR 73316/01). In this case, the Court unanimously found that trafficking fell within the scope of art 4:
There can be no doubt that trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention. In view of its obligation to interpret the Convention in light of present-day conditions, the Court considers it unnecessary to identify whether the treatment about which the applicant complains constitutes ‘slavery’, ‘servitude’ or ‘forced and compulsory labour’. Instead, the Court concludes that trafficking itself, within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention, falls within the scope of Article 4 of the Convention. [282]
Significantly, the Court went on to outline three positive obligations that arise under art 4:
- Firstly, States must have in place a legislative and administrative framework to prohibit and punish trafficking.
- Secondly, States are required to take measures to protect victims or potential victims of trafficking where circumstances give rise to a credible suspicion of trafficking.
- Thirdly, States have a procedural obligation to investigate situations of potential trafficking not only domestically but to cooperate effectively with other States concerned.
The Court noted that these positive obligations apply to all States implicated in trafficking:
Trafficking is a problem which is not often confined to the domestic arena. When a person is trafficked from one State to another, trafficking offences may occur in the State of origin, any State of transit and the State of destination. [289]
The Court found that the Cypriot immigration policy and specifically the artiste visa regime contained a number of weaknesses that failed to afford Rantseva practical and effective protection against trafficking. Furthermore, it was found that the Cypriot police failed to make inquiries into whether Rantseva had been trafficked where they ought to in light of the well known issues regarding cabaret artistes and trafficking. Accordingly, the Court held that Cyprus had violated art 4. The Court found a number of deficiencies in the police investigation, including the lack of further inquiries despite the inconsistencies surrounding Rantseva’s death. Further, it was found that the Cypriot authorities ignored numerous requested by Russia to conduct further investigations and failed to seek assistance from Russia to enable adequate investigations to occur. Accordingly, the Court found that Cyprus violated art 2 (right to life) by failing to conduct an effective investigation.
In relation to Russia, the Court found that Russian authorities had violated their procedural obligations under art 4 due to the failure to investigate the alleged trafficking of Rantseva.
Relevance to the Victorian Charter
Section 11 of the Victorian Charter mirrors art 4 of the European Convention, prohibiting slavery, servitude and forced labour. Accordingly this case has direct relevance for the interpretation of s 11, particularly in relation to the scope of the right and the positive obligations upon the government that may arise.
The decision is available at http://www.bailii.org/eu/cases/ECHR/2010/22.html.
Prabha Nandagopal is on secondment to the Human Rights Law Resource Centre and Amnesty International from DLA Phillips Fox