Civil Law Assignment: Law of Human Rights on Trafficking
Question
Task:
Write a well-structured civil law assignment on “The case law of the European Court of Human Rights on trafficking in human beings”.
Answer
Law of human rights on trafficking
Introduction
Slavery is one of the most known crimes in history and in many countries, it has been abolished, but enslavement in other forms remains strong. The term “Human trafficking” focused herein civil law assignment refers to the modern form of slavery where people are being trafficked, sold and bought like objects by more powerful forces. Despite the existence of regulations and international bodies aimed at the eradication of human traf?cking, it continues to thrive. Human trafficking is a form of modern-day slavery in which traffickers use force, fraud or coercion to control victims for the purpose of exploitation. Victims of human trafficking can be men, women and children. Victims suffer physical abuse and sexual abuse; they live in inhumane conditions and work long hours. The trafficker profits greatly from this trade by exploiting the victim and using fear tactics to force the victim to do whatever he/she commands them to do. They use force, fraud or coercion and as a result, these individuals remain trapped in a system they have no way of escaping. While many countries around the world have made it illegal to participate in the sex trade slaves are still being sold throughout our communities today. This is often done through fraud, force and intimidation. Global awareness is the only way to counter, trafficking. The UN aims to help people reaffirm their human rights and not just be allowed to exist as a slave. This problem can be seen as the weaker continuation of slavery worldwide. While millions of people have gained freedom through anti-slavery initiatives, this endeavour to abolish slavery remains incomplete without addressing the issue of forced labour and other forms of exploitation that have passed off as a normal phenomenon in society.
Prohibition of Slavery by ECHR
‘The European Convention on Human Rights’ defines slavery as "the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised." Conscription is seen as a form of slavery because it is compulsory to work required not by the state but by private entities. Conscription is a form of ‘forced labour’ and is therefore prohibited by ‘Article 4 of the European Convention on Human Rights’.
Slavery is a condition in which one human being owns another, often through coercion. Forced labour is the result of force or coercion: the person performing the work does so because he or she has no other choice. ‘The European Convention on Human Rights (ECHR)’ guarantees that these practices will not be tolerated under any circumstances.
The term slavery in Article 4 is interpreted relatively narrowly (compared to other instruments) as covering only people deprivation of their liberty "by means of their being sold, bought, exchanged or given" and is generally considered to be a rights violation today only when committed as a part of organized crime and for exploitation. The effective implementation of the prohibition of slavery across the European region has been tested and strengthened by the ‘European Committee on Social Rights’ (the Committee) in the past decade. By examining various case studies, the 2008 Conclusions of the Committee established several rules that can be applied to combat modern-day slavery. These include an obligation at the national level to define or identify such forms of work and assess if they might be a form of forced labour.
A seven-year battle by victims of child trafficking resulted in a landmark case at the European Court of Human Rights.
The European Court of Human Rights (ECtHR) ruled on February 20, 2021, that the British government had violated two articles of the ‘European Convention on Human Rights’ by failing to protect victims of child trafficking and by breaching the prohibition of forced labour. In addition to awarding compensation to the two trafficked Vietnamese teenagers who brought the suit, the Court ordered a change to UK law so that minors involved with cannabis farms could not be tried at trial as adults if it could be shown they were exploited or under duress.
Article 4 of the European Convention on Human Rights states that “no one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.” In a case against the United Kingdom, the pair of victims brought suit against the United Kingdom, asserting that British Courts failed to identify them as human-trafficking victims and protect them. The Court ruled in favor of the victims and determined that Britain's failure to protect potential trafficking victims from exploitation violated Article 4 of its human-rights obligations.
UK Government and police forces across the country have failed to protect children. The criminal justice system’s response to child drug supply is so shockingly inadequate that there is a real risk of serious injustice. It would be a mistake to assume that those who create or facilitate child drug supply networks see their role as a guide or mentor to their young, vulnerable recruits but they certainly use the power imbalance between adult and child to their advantage.
This ruling may be the first from a European Court of Human Rights to overturn such convictions because the UK failed to identify trafficking victims. Not only does it affect the two young people involved, but it sets a new standard for how immigration cases are handled and how victims are recognized.
The fact that many young people involved in county lines drug supply and exploitation are unaware of their exploitation makes them susceptible to an additional and very damaging failure of protection - being treated as criminals rather than victims. Child victims are not guilty of crimes; they are victims of crimes. As such, they need support to rebuild their lives rather than punishment for crimes victimised by others. In short, a system has been created that may well catch those who victimise children but does little or nothing to protect them from doing so again in future; indeed, it can make children more vulnerable to future exploitation by giving them criminal records.
Austrian authorities implemented their duty
This case was brought to the ‘European Court of Human Rights (ECHR)’ by two Filipino nationals, who worked as maids in the UAE. They claimed that their employer in Abu Dhabi had taken away their passports and made them work long hours with little rest. In 2006, they managed to escape from their employer and returned to Vienna. They explained their situation at the Austrian consulate there and were told that they could go to the police. When they did so in February 2007, however, the police took no action against their employers or the agency that had placed them.
In accordance with Article 3 of the Convention, States have a legal obligation to investigate torture allegations. This obligation applies to both alleged acts and to the individual administrative or policy decisions that allow such acts to take place.
The applicants complained before the European Court and relied on Article 6 § 1 of the Convention. According to them, the Austrian authorities had not taken any measures about their complaint that they were forced to work in UAE under inhumane conditions and, thus, did not provide them with effective protection against forced labour. The Austrian authorities closed their investigation into the applicants’ case after finding that they did not have jurisdiction to prosecute possible crimes committed abroad. In their complaint before the European Court, the applicants asserted that Austria had a duty under international law to investigate events occurring abroad.
The Court held that under the ‘European Convention on Human Rights’ Article 4, which provides universal jurisdiction over participating in slavery, slave trafficking and forced labour, had occurred was not violated. So far, this principle has not been applied at all by European national courts. The ‘European Court of Human Rights’ did not follow this example either.
The Court found that the Austrian Government had respected their obligations under the ECHR. The Austrian court rejected the applicants’ appeal, concluding that all the measures available were taken to protect them and that the group had been supported by a government-funded NGO. Special officers interviewed the group, who were then granted residence permits and work privileges. A ban was also placed on disclosing personal data obtained during the interviews.
The Austrian authorities' approach of regularising their stay in Austria was not, in itself, unreasonable. The applicants' data disclosure ban was designed to protect them and was never breached. This ban could only have been circumvented by deception, but there is no evidence that this happened.
Albanian national given residence permit, who has been trafficked and exploited
The applicant appeared to have been trafficked from Italy to the United Kingdom and forced into prostitution in a night club. The applicant alleged someone collected all of her profits while she was there, and she escaped to an undisclosed shelter. She further alleged that she would be exposed to a risk of being trafficked again if she were removed from the United Kingdom to Albania.
The applicant was an Italian national, who born in 1975 and living in the UK having been trafficked from Italy. The applicant claims that she is at risk of further abuse by her traffickers in Albania because of her status as a trafficking victim and because she does not have family or social ties in Albania. The applicant rests her case on Article 3 of the Convention, which prohibits torture and inhuman or degrading treatment. The applicant is seeking asylum on the basis of Article 4 of the Convention against forced labour, which prohibits all forms of involuntary servitude and slave labour and Article 8 which recognises an individual’s a right to respectful life. The applicant also refers there has been a failure by the State party to protect her under Article 2, which prevents torture from being used as an excuse to prevent people entering the UK thus preventing them from claiming asylum.
The ‘European Court of Human Rights’ held that the UK immigration authorities had wrongly issued deportation orders against the applicant and her daughter, as they were Albanian nationals granted refugee status. While the court shared the opinion that granting asylum and rejecting an immigration application could be interpreted as a favourable response, it took into account the fact that the government had intervened to come up with additional financial compensation for legal costs incurred.
The Court considered that the applicant's complaint concerned an episode which had already come to an end and was no longer likely to recur, and decided to strike the application out of its list of cases.
Conclusion
A problem faced by many anti-trafficking frameworks, however, is the lack of attention given to the reintegration of trafficked persons into their cultural and social framework. The experiences of trafficked persons are particularly varied, taking on various forms, from forced labour to sexual exploitation. The approach to anti-trafficking legislation practiced in some countries today represents a progressive and necessary shift in understanding, not only of the phenomenon of trafficking in persons, but also of the deeply flawed conception of human rights that sees them as primarily concerned with the protection of individual freedoms. The combination of crime control and human rights-based approaches to combating the trafficking of persons has been a response to the fact that few countries have had articulated policies in place to deal with the issue. The issue was noticed only with the increase in trafficking, as it became clear there was as yet no system in place to handle it. One of the most important steps that legal systems must take to prevent trafficking is to effectively treat victims of trafficking. By granting these individuals a right to stay and providing them with adequate protection, services and assistance, legal systems send a clear message that the trafficking and exploitation of individuals will not be tolerated. To combat trafficking, countries must come together on this issue. All members must take practical steps to prevent human trafficking, including ensuring vulnerable groups are not subject to deportation.
Reference
1 The European Court on Human Rights, 'The European Convention On Human Rights' (The European Court on Human Rights 2013).
2 ECPAT UK, 'Landmark Victory At The European Court Of Human Rights For Survivors Of Child Trafficking' (2021)
3 Parosha Chandran, 'King's Professor Wins Landmark Judgement In The European Court Of Human Rights' (Kcl.ac.uk, 2021)
4 AN v the United Kingdom [2021] The European Court of Human Rights, 74603//12 (The European Court of Human Rights).
5 VCL v the United Kingdom [2021] The European Court of Human Rights, 77587/12 (The European Court of Human Rights).
6 J and Others v Austria [2017] European Court of Human Rights, 58216/12 (European Court of Human Rights).
7 J and Others v Austria [2017] European Court of Human Rights, 58216/12 (European Court of Human Rights).
8 What Is The European Convention On Human Rights? | Equality And Human Rights Commission' (Equalityhumanrights.com, 2017)
9 Paola Cavanna, Ana Belén Valverde Cano and Amy Weatherburn, 'Securing The Prohibition Of Labour Exploitation In Law And Practice: Slavery, Servitude, Forced Labour And Human Trafficking In Italy, Spain And The UK' (2018) 4 Journal of Modern Slavery.
10 Vladislava Stoyanova, 'Human Trafficking And Slavery Reconsidered' [2017] Conceptual Limits and States' Positive Obligations in European Law.
Bibliography
Primary Sources
Journals Articles
Cavanna P, Valverde Cano A, and Weatherburn A, 'Securing The Prohibition Of Labour Exploitation In Law And Practice: Slavery, Servitude, Forced Labour And Human Trafficking In Italy, Spain And The UK' (2018) 4 Journal of Modern Slavery
Stoyanova V, 'Human Trafficking And Slavery Reconsidered' [2017] Conceptual Limits and States' Positive Obligations in European Law
European Court of Human Rights
AN v the United Kingdom [2021] The European Court of Human Rights, 74603 12 (The European Court of Human Rights)
J and Others v Austria [2017] European Court on Human Rights, 58216 12 (European Court on Human Rights)
J and Others v Austria [2017] European Court of Human Rights, 58216 12 (European Court of Human Rights)
VCL v the United Kingdom [2021] The European Court of Human Rights, 77587 12 (The European Court of Human Rights)
Secondary Sources
Websites
Chandran P, 'King's Professor Wins Landmark Judgement In The European Court Of Human Rights' (Kcl.ac.uk, 2021)
ECPAT UK, 'Landmark Victory At The European Court Of Human Rights For Survivors Of Child Trafficking' (2021)
