Forced labor. Ineffective human trafficking research!
JUDGMENT
Zoletic and others v. Azerbaijan 07.10.2021 (app. no. 20116/12)
SUMMARY
Human trafficking, definition, obligations of the state in accordance with international conventions. Ineffective research. Procedural part of article 4 par. 2 of the ECHR.
The Court found that the concept of trafficking in human beings for the purpose of forced or compulsory labor falls within the scope of Article 4 § 2 of the Convention only if all the elements (action, means, purpose) of the international definition of trafficking in human beings are present. Trafficking in human beings occurs when people are treated as products that are bought and sold and forced to work, often with little or no pay, usually in the sex industry and elsewhere, subject to close surveillance and their movements are often restricted. It also includes the use of violence and threats against victims who live and work in poor conditions.
In the present case, the ECtHR noted that the applicants had been brought to Azerbaijan as foreign builders for a construction company at a time when there had been many complaints about the construction company in general. They claimed that during this period they had been victims of forced labor and human trafficking, had worked without contracts and work permits, had their documents removed and their freedom of movement restricted by their employer, and had not been paid their wages and were working. under the threat of “punishment” and the imposition of criminal sanctions.
It found that domestic authorities had failed to demonstrate that any effective investigation into the applicants ‘allegations had been carried out, thus violating the State’s positive obligation to further investigate the applicants’ allegations. It found a violation of the procedural part of Article 4§2 of the ECHR and awarded each of the applicants the sum of 5,000 euros for non-pecuniary damage.
PROVISION
Article 4 par. 2
PRINCIPAL FACTS
The applicants are 33 nationals of Bosnia and Herzegovina who were born between 1952 and 1990
and live in various parts of Bosnia and Herzegovina.
The applicants were recruited from Bosnia and Herzegovina as temporary construction workers in
Azerbaijan. The case concerns their treatment there by Serbaz Design and Construction LLC and their
subsequent treatment by the authorities and the latter’s alleged failure to protect them.
Relying on Article 4 § 2 (prohibition of forced labour), Article 6 (right to a fair trial) and Article 1 of
Protocol No. 1 (protection of property) to the European Convention, the applicants complain that
they had been victims of human trafficking and forced labour.
THE DECISION OF THE COURT…
Article 4 § 2
(a) Applicability – The Court found that the totality of the applicants’ arguments and submissions made both before the domestic courts in their civil claim and the Court, constituted an “arguable claim” that they had been subjected to cross-border human trafficking and to forced or compulsory labour on the territory of Azerbaijan by, among others, some alleged perpetrators who had been resident in Azerbaijan. In particular:
First, it transpired from the case file that the period during which the applicants had worked in Azerbaijan had coincided, either fully or at least partially, with the period in respect of which the grievances in general about the situation at Serbaz had been raised, namely May to November 2009. Second, the Court took into account the general description of the working and living conditions provided in the applicants’ civil claim as well as the additional material they had had relied on both before the domestic courts and the Court. More specifically they had referred to a report (“ASTRA” report) dated 27 November 2009 prepared by three NGOs from Serbia, Bosnia and Herzegovina and Croatia in cooperation with the Azerbaijan Migration Centre (“AMC”). This report provided a more detailed account of the allegations made concerning the treatment of workers by Serbaz and contained additional information as to the potential situation of forced or compulsory labour and human trafficking. The existence and contents of this report had been sufficiently brought to the attention of the domestic courts. Although an NGO report would not, in itself, have significant evidentiary value without further investigation, given the area of expertise of the NGOs involved, namely assistance to migrant workers and combating human trafficking, the prima facie information provided in it constituted material corroborating the applicants’ submissions. Further, there had been other corroborating information regarding workers who had reportedly been in the same or similar situation as the applicants during the same time period which had been referred to by the applicants or otherwise brought to the attention of the domestic courts and other authorities.
The allegations concerning physical and other forms of punishments, retention of documents and restriction of movement explained by threats of possible arrests of the applicants by the local police because of their irregular stay in Azerbaijan had been indicative of possible physical and mental coercion and work extracted under the menace of penalty. The allegations as to non-payment of wages and “fines” in the form of deductions from wages, in conjunction with the absence of work and residence permits, disclosed a potential situation of the applicants’ particular vulnerability as irregular migrants without resources. These allegations suggested that even assuming at the time of their recruitment the applicants had offered themselves for work voluntarily and had believed in good faith that they would receive their wages, the situation might have subsequently changed as a result of their employer’s conduct. In this connection, the allegations of forced excessively long work shifts, lack of proper nutrition and medical care, and the general picture of the coercive and intimidating atmosphere within Serbaz was also relevant. The Court considered that all of the above allegations, taken together, amounted to an arguable claim that the applicants had been subjected to work or service which had been exacted from them under the menace of penalty and for which they had not offered themselves voluntarily.
Moreover, the three constituent elements of human trafficking were also present: the fact that the applicants had been recruited in Bosnia and Herzegovina, brought in groups to Azerbaijan by a private company and settled collectively in designated accommodation, which they allegedly could not have left without permission by the employer, could have constituted “recruitment, transportation, transfer, harbouring or receipt of persons” (“action”); the information in the ASTRA Report concerning the circumstances of recruitment disclosed an alleged situation that may have amounted to recruitment by means of deception or fraud (“means”); the conclusion reached as regards the arguability of their claim of “forced or compulsory labour” disclosed also the potential purpose of exploitation in the form of forced labour (“purpose”).
(b) Compliance with obligations –
(i) Whether an obligation to investigate arose in the present case – The Court found that it did, even though the applicants themselves had not lodged a formal criminal complaint, as it considered that their “arguable claim” had been sufficiently and repeatedly drawn to the attention of the relevant domestic authorities in various ways, such as, complaint letters by the AMC to the law-enforcement authorities and its challenge of the authorities’ inactivity before the domestic courts; the applicants’ civil claim and the legal-assistance requests. In connection to the latter, the Court noted that in the context of positive obligations under Article 3 of the Convention, which were similar to those under Article 4 of the Convention, sufficiently detailed information contained in an inter-State legal-assistance request concerning alleged grave criminal offences which might have been committed on the territory of the State receiving the request might amount to an “arguable claim” raised before the authorities of that State, triggering its duty to investigate those allegations further.
The Azerbaijani authorities had also been aware of the 2011 report of the European Commission against Racism and Intolerance (“ECRI”) on Azerbaijan according to which many employers employing migrant workers in Azerbaijan, including in the construction sector, had had recourse to illegal employment practices and, as a result, migrants employed illegally often found themselves vulnerable to serious forms of abuse. The findings of this report had been later developed in the 2014 Report of the Group of Experts on Action against Trafficking in Human Beings of the Council of Europe (“GRETA”) concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Azerbaijan. This report observed that law‑enforcement officials in Azerbaijan reportedly had a tendency to see potential cases of human trafficking for labour exploitation as mere labour disputes between the worker and the employer and there seemed to be a confusion between cases of human trafficking for labour exploitation and disputes concerning salaries and other aspects of working conditions. While far from being conclusive, the general context described in both these reports was relevant in the assessment of the facts of the present case.
In view of all the above, the authorities had been under an obligation to act on their own motion by instituting and conducting an effective investigation.
(ii) Whether there was any effective investigation – The Government had not submitted any information or comments about any investigation conducted by the domestic law-enforcement authorities, failing thus to demonstrate that any effective investigation had taken place into the applicants’ allegations. Nor did it follow from the case file, including the documents submitted by the third party, that any such investigation had taken place. Amongst other things, these documents contained no information as to any attempts to identify and question any potential or already-identified alleged victims, including the applicants. In so far as the Anti‑Trafficking Department of the Ministry of Internal Affairs had known that many alleged victims had been sent back to Bosnia and Herzegovina and had been informed about the criminal proceedings there, it could have sent a formal legal-assistance request to the authorities of that country under the Mutual Assistance Convention, requesting the latter to identify and question such potential victims and to provide copies of their statements to the Azerbaijani law-enforcement authorities. Furthermore, it had not been demonstrated that any attempts had been made to identify and question any of the allegedly implicated persons who were nationals or residents of Azerbaijan.
The respondent State had thus failed to comply with its procedural obligation to institute and conduct an effective investigation of the applicants’ claims concerning the alleged forced labour and human trafficking.
Conclusion: violation of Article 4 § 2 under its procedural limb (unanimously)
Just satisfaction:
non-pecuniary damage: EUR 5,000 to each applicant
costs and expenses: no request for just satisfaction made
