Prostitute’s claim for compensation against her trafficker for profits she did not receive! Rejected as contrary to good morals. Violation of Article 4 of the ECHR
JUDGMENT
Krachunova v. Bulgaria 28.11.2023 (app. no. 18269/18)
SUMMARY
The case concerned Ms Krachunova’s attempts to obtain compensation for the earnings from sex
work that X, her trafficker, had taken from her. The Bulgarian courts had refused compensation,
stating she had been engaged in prostitution and returning the earnings from that would be contrary
to “good morals”.
The Court held that States had an obligation to enable victims of trafficking to claim compensation
for lost earnings from traffickers, and that the Bulgarian authorities had failed to balance
Ms Krachunova’s right under Article 4 to make such a claim with the interests of the community,
who were unlikely to find the payment of compensation in such a situation immoral.
This was the first time that the European Court had found that a trafficking victim had a right to seek
compensation in respect of pecuniary damage from her trafficker under Article 4.
PROVISION
Article 4
PRINCIPAL FACTS
The applicant, Daniela Danailova Krachunova, is a Bulgarian national who was born in 1985 and lives
in Koshava (Bulgaria).
In April 2012, following a row with her parents, with whom her relationship was difficult, the
applicant left home to live with X, his partner, and his four children, in the village of Novachene,
about 70 km from Sofia. X’s main occupation was driving sex workers to and from work. He was
known to the police for, among other things, being an associate of pimps.
The applicant began sex work as she “needed the money” and was curious about whether she
“would be able to earn as much as the other girls”. By May 2012 she was working every day on the
Sofia ring road. By July of that year, she wanted to quit, but alleged that X had beaten and
threatened her. In August that year she ran away to her village.
X found her and took her back to his house. He took her identity card. She returned to sex work as
she felt she had no choice. From that time on, X took all her earnings, buying her just what she
needed and giving her pocket money.
In February 2013, the applicant was arrested. X was summoned to the police station, where he
handed over her identity card (which he had on his person), claiming that he had been keeping it for
her to avoid its being stolen. The police opened an investigation against X.
The applicant was given leave to join the trial before the Sofia District Court as a private prosecutor
and to claim damages against X. She claimed 16,000 Bulgarian levs (BGN – 8,181 euros (EUR)) as the
earnings he had taken from her, and BGN 8,000 in non-pecuniary damages. However, the court
stated at its first hearing that her claim for pecuniary damages could not be examined as it
concerned money earned through “lewd and immoral acts”. X was found guilty of trafficking in
human beings and of inciting the applicant to engage in prostitution for gain. Apart from a custodial
sentence and a fine, he was ordered to pay compensation of BGN 2,000 to the applicant in respect
of non-pecuniary damage.
X appealed, and a retrial was ordered. In the retrial, the applicant claimed BGN 22,500 in respect of
lost earnings, as the minimum that X had taken from her, and argued that prostitution was not an
offence since it was subject to taxation and had not been expressly criminalised.
In January 2017 X was convicted of trafficking in human beings only. He received a suspended prison
sentence, probation measures, and a fine. He was also ordered to pay the applicant compensation of
BGN 8,000 in respect of non-pecuniary damage, but her claim as regards pecuniary damage was
dismissed. The court reasoned that “Each contract for sexual services made between [the applicant]
and the respective client was void as infringing good morals … and there [could] be no question of
damages”.
In the final judgment, the Sofia City Court upheld the retrial judgment in December 2017.
THE DECISION OF THE COURT…
The Court was satisfied that the applicant had been a victim of human trafficking, noting, among
other points, the control X had had over her access to money, that he had allegedly hit her, and that
he had had intimate relations with her (traffickers often use emotional involvement as a means to
control their victims). The question was whether there was a positive obligation on the State to
provide an avenue for trafficked individuals to claim compensation for lost earnings from their
traffickers.
The Court reiterated that Article 4 conferred positive obligations on the States, including putting in
place a legislative and administrative framework that prohibited and punished trafficking, taking
operational measures to protect victims in some cases, and investigating situations of potential
trafficking.
Those positive obligations could extend to the way in which the law regulated certain matters,
including the seeking and awarding of damages. It was not decisive that the text of Article 4 was
silent on whether it laid down an obligation to enable victims to sue their traffickers in respect of
lost earnings; specific obligations of that kind had been read into other Convention provisions whose
text was equally silent on such points. There were strong arguments in favour of reading such an
obligation into Article 4. Together with Articles 2 (right to life) and Article 3 (prohibition of torture), it
enshrined one of the basic values of the democratic societies making up the Council of Europe, and
trafficking was incompatible with those values. It had long been accepted that the combat against it
had to be guided by a comprehensive approach. After-the-fact responses, such as investigation and
punishment, were essential for deterrence, but could not wipe away the material harm suffered by
its victims. The possibility for them to seek compensation in respect of, in particular, withheld
earnings could redress the full extent of the harm suffered by them. It would also give them the
financial means to rebuild their lives. Such a mechanism would, moreover, go some way towards
ensuring that traffickers could not enjoy the fruits of their offences, thus reducing the incentives to
engage in trafficking.
It could hence be concluded that Article 4, interpreted in a way rendering its safeguards practical
and effective, laid down a positive obligation to enable the victims of trafficking to claim
compensation from their traffickers in respect of lost earnings.
In support of this conclusion, the Court referred to relevant internationals treaties, which set out a
duty to allow trafficking victims to seek compensation, including the Palermo Protocol (Article 6 § 6)
and the Anti-Trafficking Convention (Article 15 § 3), both of which were in force in all Contracting
States.
There was, moreover, a trend – most prominently in the United States of America and Canada, but
also in some European States – Austria, Belgium, Denmark, France, Germany, the Netherlands,
Norway and the United Kingdom – towards enabling trafficking victims to recover from their
traffickers the gains that the latter have realised by exploiting them, while arguably only one
Contracting State apart from Bulgaria specifically barred such claims.
The Bulgarian courts had referred to the criminalisation of income derived from prostitution in
Bulgarian law and to “good morals” in dismissing the applicant’s claim for compensation from X. In
this regard, the Court noted that the offence, set out in Article 329 § 1 of the Bulgarian Criminal
Code, of earning income in a prohibited or immoral way, reflected outdated social attitudes left over
from the totalitarian communist regime. Indeed, the Article had been declared unconstitutional by
the Bulgarian Constitutional Court in September 2022. The alleged illegality of the applicant’s
earnings had therefore not been an adequate ground to dismiss her claim.
Concerning the question of “good morals”, the Court stated that human rights should be the main
criterion in designing and implementing policies on prostitution and trafficking. It was hard to
imagine in this case that ordering X to return the money taken from the applicant to her would have
offended public morals. Even if there existed sound public-policy reasons to dismiss a claim relating
to earnings obtained through prostitution (for instance, it could be argued that upholding such a
claim might be seen as condoning prostitution or encourage some people to engage in it), in this
case such reasons came up against the countervailing and undoubtedly compelling public policy
against trafficking and in favour of protecting its victims, to which not only the Court but also the
Bulgarian authorities themselves attached considerable significance.
The Court therefore concluded that the Bulgarian courts had failed to adequately balance the
applicant’s rights under Article 4 against the interests of the community. There had thus been a
violation of that Article.
Just satisfaction (Article 41)
The Court held that Bulgaria was to pay the applicant 6,000 euros (EUR) in respect of non-pecuniary
damage, and EUR 3,100 in respect of costs and expenses.
