The exploitation of women for prostitution is part of the prohibitions in Article 4 of the ECHR and the victim’s consent is no importance to the responsibilities of the state or the perpetrator
JUDGMENT
S.M. v. Croatia 19.07.2018 (no. 60561/14)
SUMMARY
The applicant had argued that a former police officer had forced her into prostitution for several months. The national courts considered that her involvement in sexual services was voluntary and freed the accused. The Strasbourg Court first applied Article 4 of the ECHR to the trafficking and exploitation of women for the purpose of prostitution and identified it in terms of its consequences and seriousness with trafficking in human beings. According to the ECtHR, the consent of the victim of exploitation to prostitution for the responsibilities of the state or the private perpetrator is of no importance. In the case of the applicant, the Prosecutors and Courts did not exercise the close scrutiny required by Article 4 in order to avoid undermining the deterrent effect of the current criminal law system on trafficking in human beings. There has therefore been a procedural violation of Article 4 (prohibition of slavery and forced labor) of the Convention.
PROVISION
Article 4
PRINCIPAL FACTS
The applicant, Ms S.M., is a Croatian national who was born in 1990 and lives in Z.
The applicant lodged a criminal complaint in September 2012, alleging that a man had forced her into prostitution over several months in mid-2011. She alleged that the man, a former police officer, had driven her to meet clients, had made her give him half of the money she had earned from providing sexual services and had threatened her and punished her if she did not comply with his demands.
At the end of 2012 the man was indicted and the applicant was officially given the status of victim of human trafficking.
After an investigation, the man was brought to trial in 2013. However, he was acquitted of forcing the applicant into prostitution. The courts found the applicant’s testimony incoherent and unreliable. They therefore concluded that the prosecution had failed to provide sufficient evidence for a conviction, and that the applicant had given sexual services voluntarily.
An appeal by the State Attorney’s Office was dismissed in January 2014, while a constitutional complaint by the applicant was declared inadmissible in June of the same year.
THE DECISION OF THE COURT
The Court has already had to address the issue of human trafficking in several judgments, but the applicant’s case is the first occasion on which it has had to consider whether Article 4 was applicable to the trafficking and exploitation of women for the purposes of prostitution.
It ruled that not only trafficking itself but also exploitation of prostitution fell within the scope of Article 4 of the European Convention. Referring to international law in the area of human trafficking, the Court found that it was irrelevant that there had been no international element and that the applicant was actually a national of the respondent State. It cited in particular the Council of Europe’s Anti-Trafficking Convention, which had been ratified by Croatia, and which encompassed “all forms of trafficking in human beings, whether national or transnational”.
The Court went on to examine the circumstances of the applicant’s case and whether they showed if Croatia had met its obligations under the Convention, firstly, to have a legislative and administrative framework to prohibit and punish trafficking and to protect victims, and, secondly, to investigate allegations of trafficking.
As to the first set of obligations, the Court was satisfied that at the time there had been an adequate legal framework in Croatia for dealing with the offence alleged by the applicant, having regard to national legislation criminalising matters such as trafficking in human beings, forced prostitution and exploitation of prostitution. Furthermore, the applicant had been recognised as a victim of human trafficking by the Croatian authorities and provided with various forms of support and help, including the right to counselling and free legal aid. Moreover, during the hearing on her case, the accused had been removed from the courtroom immediately upon her request and she had given evidence in his absence.
However, as concerned the investigation into the applicant’s complaint, the Court found several shortcomings.
Among other things, it observed that the authorities had not interviewed key witnesses, including the applicant’s clients and other individuals who might have been able to testify as to the true nature of her relationship with the accused. Nor had they made any serious attempt to investigate her allegation of threats and of being financially dependent on him. Lastly, they had not assessed the possible impact of psychological trauma on her ability to clearly and consistently relate the circumstances of her exploitation, simply dismissing her testimony as unreliable.
In any case, by finding that the applicant had provided sexual services voluntarily and had not been coerced, the domestic courts had not taken into account international law in the area of human trafficking, including the Council of Europe Anti-trafficking Convention, according to which the consent of the victim was irrelevant.
Therefore the Court was not satisfied that the prosecuting authorities and the courts had submitted the applicant’s case to the careful scrutiny required by Article 4 of the Convention to avoid undermining the deterrent effect of the criminal-law system in place. There had therefore been a procedural breach of Article 4.
Just satisfaction (Article 41)
The Court held that Croatia was to pay the applicant 5,000 euros (EUR) in respect of non-pecuniary damage.
Separate opinion
Judge Koskelo expressed a dissenting opinion which is annexed to the judgment(echrcaselaw.com editing).
