CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 17 janvier 2017

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AND OTHERS v. AUSTRIA   (Application no. 58216/12)                 JUDGMENT     STRASBOURG   17 January 2017     FINAL   17/04/2017       This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of J. and Others v. Austria, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   András Sajó, President,   Vincent A. De Gaetano,   Nona Tsotsoria,   Paulo Pinto de Albuquerque,   Krzysztof Wojtyczek,   Gabriele Kucsko-Stadlmayer,   Marko Bošnjak, judges, and Marialena Tsirli, Section Registrar, Having deliberated in private on 6 December 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 58216/12) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Filipino nationals (“the applicants”), Mrs J. (“the first applicant”), Mrs G. (“the second applicant”) and Mrs C. (“the third applicant”), on 4 September 2012. The President of the Section acceded to the applicants’ request not to have their names disclosed (Rule   47 § 4 of the Rules of Court). 2.     The applicants were represented by Mr Adam Weiss, Legal Director of the AIRE Centre, a non-governmental organisation (NGO) with its registered office in London. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs. 3.     The applicants complained that the Austrian authorities had failed to undertake effective and exhaustive investigations into their allegations that they had been the victims of human trafficking. 4.     On 10 June 2014 the complaints under Articles 3, 4 and 8 of the Convention were communicated to the Government, and the remainder of the application was declared inadmissible, in accordance with Rule 54 § 3. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The first and second applicants were born in 1984 and 1982 respectively and live in Vienna. The third applicant was born in 1972 and lives in Switzerland. 6.     The following summary of the background of the case and the events in Austria is based on the submissions by the applicants. The account of the investigation in Austria is based on the submissions by both parties. A.     Background of the case 7.     The applicants are all nationals of the Philippines. The first and third applicants were recruited in 2006 and 2009 respectively by an employment agency in Manila to work as maids or au pairs in Dubai (United Arab Emirates). The second applicant travelled to Dubai in December 2008 for the same purpose, at the suggestion of the first applicant, not via an agency. All of the applicants had their passports taken away by their employers. During the course of their work in Dubai, they allege that they were subjected to ill-treatment and exploitation by their employers, who also failed to pay them their agreed wages and forced them to work extremely long hours, under the threat of further ill-treatment. 1.     The first applicant 8.     In late 2006 the first applicant contacted an agency in Manila in order to find a job abroad. She is a single mother with one daughter who was eight months old at the time. She signed a contract in which she agreed to work for a family in Dubai for two years, from December 2006 until December 2008. The contract also stipulated that she would be paid 700   United Arab Emirates dirhams (AED – approximately 150 euros (EUR) at that time) per month to work for eight hours each working day. Upon her arrival in Dubai the first applicant was taken to her employers, who were two sisters or sisters-in-law sharing one large residence with their families. One of them took possession of her passport. 9.     For most of the initial two-year contract the first applicant was not subjected to physical abuse or direct threats of harm by her employers, and she was paid regularly. However, she had to work from 5 a.m. to midnight throughout the initial two-year period. Her duties included looking after her employers’ children, preparing meals, cleaning the house, doing the laundry and numerous other jobs around the house and garden. During the first nine months she was required to perform this work seven days per week without a single day off, and was not allowed to leave the house unsupervised. She was not allowed to have her own telephone and was only allowed to call her family in the Philippines once a month, the costs of these calls being deducted from her wages. Further, the first applicant was forbidden from speaking to any of the other workers from the Philippines in their native language. She was constantly hungry, as she was generally only given the family’s leftover food. Only when she accompanied the family to the supermarket approximately once a month was she allowed to buy some basic food for herself. 10.     After approximately nine months, the first applicant faced the first punishments by her employers. She was forced to sleep on the floor when they found out that she had been talking to another employee from the Philippines in their native language. When she became ill after sleeping on the cold floor, her employers prevented her from buying medicine or contacting a doctor; instead, she had to continue working the same hours. 11.     Towards the end of her two-year contract, the first applicant’s employers informed her that they wished her to stay, and offered her better pay, more days off and a telephone of her own, as well as permission to visit her family, provided that she recruited someone to take over her job while she was away. The first applicant finally agreed to extend her contract and returned to the Philippines for three months. Owing to the incentives and the prospect of improved working conditions, she asked the second applicant to take over her role in Dubai during the time she was away. 12.     While the first applicant was in the Philippines, she received threats from her employers that if she did not return to Dubai to work, she would be banned from ever going back there, and the second applicant would be subjected to ill-treatment. The first applicant therefore returned to Dubai in April 2009. 13.     After she returned to Dubai, she was taught how to drive. After she failed her first driving test, she was forced to pay for further lessons and tests out of her own salary, with four further driving tests costing AED 700 each, a month’s salary. While she was driving, one of her employers hit her on the shoulder on a number of occasions to force her to speed up. The employer also started to slap or hit her regularly for no or little reason. She also repeatedly threatened to let her husband hit the first applicant if she did not follow her orders or made any mistakes. 14.     The first applicant accompanied her employers on trips to Europe, Australia, Singapore and Oman, where she spent significant amounts of time locked up in hotel rooms or under the close supervision of her employers. She only had to visit one embassy in person to obtain entry documents, and that was in relation to a trip to London, at which time she was ordered by her employers to lie about her work conditions. When they arrived in London, the first applicant was not allowed at any time to leave the apartment in which they were staying. 2.     The second applicant 15.     The second applicant was married with three young children in the Philippines. Her husband had no regular work. Because she expected better pay in Dubai, she agreed to work for the same employers as the first applicant. The employers in Dubai arranged a visiting visa for her, under false pretences. As a result of this arrangement, the second applicant did not approach the employment agency in the Philippines and did not have a written contract with her employers. Her understanding was that she would get AED 700 per month, which would be paid directly to her family in the Philippines. 16.     In December 2008 the second applicant started to work in Dubai. After the first applicant returned to the Philippines for three months in January   2009 (see paragraph 11 above), the employers significantly changed their conduct towards the second applicant. They threatened not to pay her family if she made any mistakes. They refused to let her leave Dubai, including by refusing to return her passport and ordering her to repay them her travel costs and related expenses. They also told her that she would be put in prison if she ran away or went to the authorities in Dubai for help. They physically and emotionally abused her, and there was one incident when one of her employers struck her across the shoulder using significant force. She was also forced to work from around 5 or 6   a.m. until midnight or 1 a.m. the following day. 17.     Between April 2009 and June 2010 the violent and threatening behaviour of the employers increased. The second applicant was punched by one of her employers on one occasion, and in another incident the employer aimed a hard slap at her face, but instead struck her across the shoulder. 3.     The third applicant 18.     The third applicant’s family were desperate for money to pay for crucial medical treatment for her brother. Therefore, in 2009 she contacted an employment agency in the Philippines and was offered work as a maid in Dubai. She was informed that she would be earning between AED 800 and 1,000 (approximately EUR 160 to 200 at that time) per month, roughly twice her salary in the Philippines. Upon her arrival in Dubai in 2009 she had to hand over her passport and mobile phone to someone supposedly working for the employment agency. She was told that these items would be returned to her when she finished her work in Dubai. 19.     The third applicant was working for a family member of the first and second applicants’ employers. The applicants got to know each other, as the two families met every Friday. They secretly shared their experiences on these occasions. 20.     The third applicant was also bound by working hours going from 6   a.m. to midnight. Her employer forced her to clean her car in the sun and in unbearable heat, and she was prohibited from going to the toilet without letting her employer know. She was only allowed to call her family in the Philippines once a month, and only in the presence of her employer. She did not receive any remuneration at all for the first three months of her employment. Afterwards, she only received approximately AED 750 per month, less than what had been agreed. On one occasion she was slapped by her employer, and on a different occasion she witnessed another employee being hit over the head. 21.     When the third applicant told her employer that she wished to return to the Philippines, she was told that she would have to pay the cost of the flight and the agency fees, which her employer knew she could not afford at that point. Her employer also made it clear that, in any event, her passport would not be returned to her until she had completed at least nine months of work in Dubai. Subsequently, the third applicant was too scared to ask to leave Dubai again, owing to her fear that her employer would take her earnings from her or refuse to return her passport for an even longer period. B.     Events in Austria 22.     On 2 July 2010 the applicants’ employers took them along on a short holiday trip to Austria. The applicants all stayed at the same hotel in the city centre of Vienna. The applicants slept in their own, separate apartment together with the female children. The male children slept in the same apartment as their parents. As in Dubai, the applicants had to take care of all of the employers’ children and perform numerous other domestic duties. They were still required to work from approximately 5 or 6 a.m. until midnight or even later. The third applicant was regularly shouted at by her employer, for example if she failed to get all the children ready early every morning. In addition, their employers woke the first applicant up at around 2   a.m. and forced her to cook food for them. Furthermore, the first applicant was forced to carry the employers’ twenty suitcases into the hotel by herself. While the applicants were in Austria, their passports remained with their employers. In the hotel in Vienna in which the applicants were staying, they became acquainted with N., an employee at the hotel who could speak Tagalog, the first applicant’s mother tongue. 23.     When the applicants accompanied their employers to a zoo one or two days after their arrival in Austria, one of the children went missing for some time. One of the employers started screaming at the first and third applicants in a manner which the applicants had not experienced before. The first applicant found the level of verbal abuse extreme, and this was a particularly distressing and humiliating experience for her. The employer threatened to beat the third applicant, and said that “something bad” would happen to her if the child was not found safe and well. By this stage, the third applicant had formed the impression that this employer, of whom she lived in a constant state of fear, was a dangerous person who might try to hurt her very badly. She had the feeling that the violence towards her was likely to escalate at any time. Therefore, she believed that something bad was going to happen to her if she remained with the family. Similarly, the first applicant believed that they could not live with their conditions of work any longer, and did not want to risk waiting to see what happened if they travelled with their employers from Vienna to London, as they were scheduled to do. The applicants therefore decided to speak to N., the Tagalog-speaking employee at the hotel, to see whether she could help them. 24.     The night following the incident – that is, two or three days after their arrival in Austria – the applicants left the hotel with the help of N., who had organised a car to pick them up in a side street near the hotel and take them to a “safe place”. The applicants subsequently found support within the local Filipino community in Vienna. C.     Proceedings in Austria 1.     Criminal proceedings against the applicants’ employers 25.     In April or May 2011, approximately nine months after they had left their employers, the applicants contacted a local NGO called “LEFÖ” for assistance in reporting their ill-treatment, abuse and exploitation to the police. LEFÖ is actively involved in the fight against trafficking in human beings in Austria. It is financed though government funds, in particular for the provision of assistance to victims of trafficking. In July 2011 the applicants decided to turn to the Austrian police and filed a criminal complaint ( Strafanzeige ) against their employers. They explained that they had been the victims of human trafficking. On 11 and 21 July and 17   August 2011, accompanied by representatives of LEFÖ, they were interviewed at length by officers from the Office to Combat Human Trafficking ( Büro für Bekämpfung des Menschenhandels ) at the Federal Office of Criminal Investigations ( Bundeskriminalamt ). In their report, the officers concluded that the offences had been committed abroad. 26.     The applicants were informed that their employers had also made allegations about their conduct, alleging, inter alia , that they had stolen money and a mobile phone from them when they had fled the hotel. Those allegations were subsequently formally recognised by the Austrian authorities as false. The applicants all expressed their willingness to actively cooperate with the authorities and to engage in criminal proceedings against their employers. 27.     On 4 November 2011 the Vienna public prosecutor’s office ( Staatsanwaltschaft Wien ) discontinued the proceedings under Article 104a of the Criminal Code ( Strafgesetzbuch – hereinafter “the CC”) relating to human trafficking (see paragraph 35 below), pursuant to Article 190 § 1 of the Code of Criminal Procedure ( Strafprozessordnung – hereinafter “the CCP” – see paragraph 36 below). On 14 November 2011 the public prosecutor gave a short written decision with reasons for the discontinuation of the proceedings. In the public prosecutor’s view, the offence had been committed abroad by non-nationals, and did not engage Austrian interests within the meaning of Article 64 § 1 (4) of the CC. 28.     On 30 November 2011 the applicants lodged an application to continue the investigation ( Fortsetzungsantrag ) with the Vienna Regional Criminal Court ( Straflandesgericht Wien ). They submitted that Austrian interests had indeed been engaged, and that their employers had continued to exploit and abuse them in Austria. In their view, the elements of the crime punishable under Article 104a § 1 (2) of the CC had been present. 29.     The Vienna public prosecutor’s office then submitted a statement to the Vienna Regional Criminal Court, specifying its reasons for discontinuing the investigation. There had been no indication in the case file that any of the criminal actions exhaustively listed in Article 104a of the CC had occurred in Austria, particularly since the offence had already been completed in Dubai ( zumal das Delikt bereits in Dubai vollendet wurde ), and the accused were not Austrian citizens. Furthermore, from the applicants’ statements (looking after children, washing laundry, cooking food), it did not appear that they had been exploited in Austria, especially since they had managed to leave their employers only two to three days after their arrival in Vienna. 30.     On 16 March 2012 the Vienna Regional Criminal Court dismissed the applicants’ application. The relevant parts of the decision read (translation from German): “The decision to discontinue [criminal proceedings] requires – by implication – that the facts of a case are sufficiently clear, or a lack of indication that investigations would be promising. There is no reason for further prosecution if, on the basis of the ... results of the investigation, a conviction is no more likely than an acquittal ... According to Article 64 § 1 (4) of the CC, if Austrian interests have been harmed by the offence or the perpetrator cannot be extradited, Austrian criminal laws apply independently of the criminal laws of the place where the crime was committed, for example in relation to the offence of kidnapping for ransom under Article 104a of the CC. Owing to the fact that the applicants spent approximately three days in Vienna, the conditions regarding the fulfilment of the elements of the crime under Article 104a § 1 (2) of the CC have not been met, since the relevant acts relating to the exploitation of labour must be committed over a longer period of time; therefore, the commission of the offence in Austria is ruled out. The jurisdiction of the Austrian criminal-law enforcement authorities cannot be deduced from Article 64 § 1 (4) of the CC either. Austrian interests are engaged if either the victim or the perpetrator is an Austrian citizen, or if the criminal acts have a concrete connection to Austria, or if an obligation arises under international law in relation to the prosecution of certain offences. Austrian interests are, in any event, engaged if a criminal offence under Articles 102, 103, 104 or 217 of the CC is committed against an Austrian citizen, or if Austrian funds or Austrian securities ( Wertpapiere ) are the subject of offences under Article 232, or Article 237 in conjunction with Article 232, of the CC. The applicants’ argument that the elements of the crime under Article 104a of the CC had also been fulfilled in Austria therefore fails, and the plea that the alleged criminal actions against them by their employers in Dubai ... would lead to an obligation on the part of Austria under international law is likewise not convincing. In relation to the present case, [this latter argument] also cannot be inferred from the quoted [Supreme Court] judgment no. 11 Os 161/81, which affirmed that Austrian interests had been damaged as a result of the import into Austria of a large amount of narcotics for transport...” This decision was served on the applicants’ counsel on 23 March 2012. 2.     Civil proceedings against the applicants’ employers 31.     In January 2013 two of the three applicants lodged a civil claim against their employers with the Vienna Labour and Social Court ( Arbeits ‑ und Sozialgericht ) in order to claim their wages. However, they alleged that because of the high risk of having to pay the costs of the proceedings because the employers did not reside in Austria, they withdrew the action. 3.     Proceedings concerning the applicants’ residence permits 32.     The NGO LEFÖ not only assisted the applicants in filing a criminal complaint against their employers, but also supported them in applying for a special residence permit in Austria for victims of human trafficking, under the former section 69a of the Residence Act ( Niederlassungs- und Aufenthaltsgesetz – see paragraph 46 below). 33.     All three applicants were granted a residence permit for special protection purposes in January 2012, valid for one year initially. Subsequently, because of their progressing integration, they were granted other types of residence permits with longer periods of validity. 34.     The applicants were officially registered in the Central Register ( Melderegister ) from the point when LEFÖ started supporting them. A personal data disclosure ban was enacted on the Central Register for their protection, so that their whereabouts would not be traceable by the general public. II.     RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A.     Domestic law and practice 35.     Article 104a of the CC, entitled “Human trafficking”, as in force at the relevant time, reads: “(1)     Any person who recruits, houses or otherwise accommodates, transports or offers, or passes on to a third party:   1.     a minor (under 18 years of age); or   2.     an adult, using dishonest means (paragraph 2) against this adult; with the deliberate intention of sexual exploitation of the minor or adult, exploitation through organ transplant, or labour exploitation, shall be punished by a prison sentence of up to three years. (2)     Dishonest means are defined as: deceit regarding the facts; exploitation of authority, situations of distress, mental disease or any condition rendering the person defenceless; intimidation; or the granting or accepting of an advantage for surrendering control over that person. (3) A person who commits this criminal act using force or severe threats shall be punished by a prison sentence of a minimum of six months up to five years. (4) ...” 36.     Article 190 of the CCP reads in its relevant parts: “The public prosecutor’s office shall refrain from pursuing the prosecution of an offence and shall discontinue the investigation if 1. the facts on which the investigation is based cannot be punished under criminal law, or if the further prosecution of the accused is inadmissible for legal reasons ...” 37.     Article 193 § 2 of the CCP reads in its relevant parts: “(2) The public prosecutor’s office may order the continuation of a criminal investigation which had been discontinued pursuant to Articles 190 or 191 [of the CCP] as long as the criminal liability for the offence is not time-barred and if 1. the accused has not been questioned in relation to this offence ... and no coercive measures have been taken against him ...” 38.     Article 197 § 1 of the CCP reads: “If the accused has absconded or his whereabouts are unknown, the investigation must continue in so far as it is necessary to secure traces and evidence. In this case, investigative measures and the taking of evidence, in which the accused has the right to participate ... may be carried out even in his absence. An order may be issued for the determination of the accused’s whereabouts or for his arrest. Thereafter, the public prosecutor’s office must stay the investigation and continue it after the accused has been located.” 39.     Article 210 of the CCP provides that if a conviction is likely on the basis of sufficiently clarified facts, and if there are no reasons to discontinue the proceedings or withdraw the prosecution, the public prosecutor’s office has to file an indictment ( Anklage einbringen ) with the competent court. 40.     Article 64 of the CC, as in force at the relevant time, provided that offences which were committed abroad could be punishable under Austrian law, inter alia , under the following conditions: “(1)     Austrian law applies irrespective of the law of the country where the crime was committed in respect of the following offences: ... 4.     ... slavery (Article 104), human trafficking (Article 104a), ... if Austrian interests are engaged by this offence or the offender cannot be extradited.” According to Austrian legal practice, Austrian interests are engaged if either the offender or the victim is an Austrian citizen, or the offence has a connection to Austria, or there is an obligation under international law (see Supreme Court judgments in case no. 13 Os 105/03, 24 September 2003, and case no. 15 Os 37/03, 27 March 2003). On 9 December 1981 the Austrian Supreme Court decided in case no. 11 Os 161/81, which concerned the transport and import of narcotics to Austria, that Austrian interests were in any event engaged if narcotics were brought to Austria, even though it was only for a short time. Moreover, the Supreme Court referred to a duty under international law to combat the transport of drugs. 41.     Article 363a of the CCP, under the heading “Renewal of criminal proceedings” ( Erneuerung des Strafverfahrens ), provides: “1.     If it is established by a judgment of the European Court of Human Rights that there has been a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette [ Bundesgesetzblatt ] no. 210/1958) or one of its Protocols on account of a decision or order of a criminal court, a retrial shall be held upon request, in so far as it cannot be ruled out that the violation might have affected the decision in a manner detrimental to the person concerned. 2.     All applications for the renewal of proceedings shall be decided by the Supreme Court. Such an application may be filed by the person affected by the violation or the Prosecutor General’s Office; Article 282 § 1 shall be applicable by analogy. The application must be lodged with the Supreme Court. If the Prosecutor General’s Office has lodged an application, the person affected must be heard; if the person affected has lodged an application, the Prosecutor General’s Office must be heard; Article 35 § 1 shall be applicable by analogy.” 42.     On 1 August 2007 (in case no. 13 Os 135/06m) the Supreme Court allowed an application for the renewal of criminal proceedings under Article   363a of the CCP, where the applicant had not previously filed a human rights complaint with the Court. In so far as relevant, the Supreme Court stated: “Given that Article 13 of the Convention requires a Contracting State to provide any person who shows with some plausibility that there has been a violation of his or her rights under the Convention and its Protocols with an effective remedy, in other words to ensure that there is a court at domestic level which examines questions of whether there has been a violation of Convention rights, Article 363a § 1 of the CCP must not be interpreted so as to allow an application for the renewal of criminal proceedings only in those cases where the European Court of Human Rights has already issued a judgment finding a violation of the Convention.” For an extensive summary of the Supreme Court judgment, see ATV Privatfernseh-GmbH v. Austria ((dec.), no. 58842/09, § 19, 6 October 2015). 43.     In a judgment of 16 December 2010 (in case no. 13 Os 130/10g) concerning an application under Article 363a of the CCP, the Supreme Court clarified: “According to established case-law, a judgment by the European Court of Human Rights is not required in order to lodge an application for the renewal of criminal proceedings under Article 363a § 1 of the CCP. Persons who plausibly claim that a decision of a criminal court of last instance has violated their fundamental rights, or that they are still victims of a human rights violation by the Criminal Investigation Department, the public prosecutor’s office, or a court, even though all domestic remedies have been exhausted, are eligible to file such an application ... Persons who are affected by a violation of the Convention in their position as [private] prosecutors ... shall not have the right to lodge an application for the renewal of criminal proceedings. In the light of this intention of the original drafters of the legislation and the scope of protection, the same must apply to victims (Article 65 of the CCP) who are in such a position. Their interests are sufficiently protected by the possibility of lodging an application for the continuation of criminal proceedings (Article 195 of the CCP) ...” 44.     In subsequent decisions the Supreme Court has confirmed that victims within the meaning of Article 65 of the CCP are not allowed to file applications for the renewal of criminal proceedings under Article 363a of the CCP (decisions of 15 May 2012, no. 14 Os 37/12s, and 19   February   2014, no. 15 Os 177/13p). Article 65 § 1 (a) of the CCP defines a “victim” as any person who may have been exposed to violence or a dangerous threat, or whose sexual integrity may have been interfered with because of an intentionally committed criminal offence. 45.     Article 66 of the CCP, as in force at the relevant time, listed the rights of victims during criminal proceedings, such as the right to: be represented by counsel; inspect court files; be informed of the progress of proceedings; and apply for the continuation of proceedings discontinued by the public prosecutor. 46.     Under the heading “special protection”, section 69a of the Residence Act ( Niederlassungs- und Aufenthaltsgesetz ), as in force at the relevant time, made provision for victims of human trafficking to obtain residence permits. B.     Relevant international treaties and other international material 1.     The Palermo Protocol 47.     The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (“the Palermo Protocol”), supplementing the United Nations Convention against Transnational Organised Crime 2000, was adopted on 15 November 2000, and came into force on 25 December 2003. It was ratified by Austria on 15   September   2005. The relevant provisions are set out in the following paragraphs. 48.     Article 3 (a) defines “trafficking in persons” as: “ the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.” 49.     Article 3 (b) provides that the consent of a victim of trafficking to the intended exploitation is irrelevant where any of the means set forth in Article 3 (a) have been used. 50.     Article 4 identifies the scope of application of the Palermo Protocol as the “prevention, investigation and prosecution of the offences established in accordance with article 5 of this Protocol, where those offences are transnational in nature and involve an organized criminal group, as well as ... the protection of victims of such offences”. 51.     Article 5 (1) provides that “each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct set forth in article 3 of this Protocol, when committed intentionally”. 52.     Article 6 deals with the assistance and protection of victims of trafficking in persons and provides, in so far as relevant: “2.     Each State Party shall ensure that its domestic legal or administrative system contains measures that provide to victims of trafficking in persons, in appropriate cases: (a)     Information on relevant court and administrative proceedings; (b)     Assistance to enable their views and concerns to be presented and considered at appropriate stages of criminal proceedings against offenders, in a manner not prejudicial to the rights of the defence ...” 2.     The Council of Europe Anti-Trafficking Convention 53.     The Council of Europe Convention on Action against Trafficking in Human Beings (“the Anti-Trafficking Convention”) was adopted by the Committee of Ministers of the Council of Europe on 3 May 2005, and entered into force on 1 February 2008. The Anti-Trafficking Convention was ratified by Austria on 12 October 2006. The relevant provisions are set out in the following paragraphs. 54.     Article 2 establishes the scope of the Anti-Trafficking Convention and states that it “shall apply to all forms of trafficking in human beings, whether national or transnational, whether or not connected with organised crime”. 55.     Article 4 (a) adopts the definition of “trafficking in human beings” which can be found in the Palermo Protocol, and replicates the provision in Article 3 (b) of the Palermo Protocol on the irrelevance of the consent of a victim of trafficking to the exploitation (see paragraphs 48 and 49 above). 56.     Article 10 is concerned with the identification of victims and provides, in so far as relevant: “1.     Each Party shall provide its competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims, including children, and shall ensure that the different authorities collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure duly taking into account the special situation of women and child victims and, in appropriate cases, issued with residence permits under the conditions provided for in Article 14 of the present Convention. 2.     Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2.” 57.     Article 18 requires States to: “...adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct contained in article 4 of this Convention, when committed intentionally.” 58.     Article 27 deals with ex parte and ex officio applications and reads: “1.     Each Party shall ensure that investigations into or prosecution of offences established in accordance with this Convention shall not be dependent upon the report or accusation made by a victim, at least when the offence was committed in whole or in part on its territory. 2.     Each Party shall ensure that victims of an offence in the territory of a Party other than the one where they reside may make a complaint before the competent authorities of their State of residence. The competent authority to which the complaint is made, insofar as it does not itself have competence in this respect, shall transmit it without delay to the competent authority of the Party in the territory in which the offence was committed. The complaint shall be dealt with in accordance with the internal law of the Party in which the offence was committed. 3.     Each Party shall ensure, by means of legislative or other measures, in accordance with the conditions provided for by its internal law, to any group, foundation, association or non-governmental organisations which aims at fighting trafficking in human beings or protection of human rights, the possibility to assist and/or support the victim with his or her consent during criminal proceedings concerning the offence established in accordance with Article 18 of this Convention.” 59.     Article 31 § 1 deals with jurisdiction and requires States to adopt such legislative and other measures as may be necessary to establish jurisdiction over any offence established in accordance with the Anti ‑ Trafficking Convention when the offence is committed: “(a)     in its territory; or (b)     on board a ship flying the flag of that Party; or (c)     on board an aircraft registered under the laws of that Party; or (d)     by one of its nationals or by a stateless person who has his or her habitual residence in its territory, if the offence is punishable under criminal law where it was committed or if the offence is committed outside the territorial jurisdiction of any State; (e)     against one of its nationals.” 60.     With regard to Article 31 § 1 (a), the explanatory report accompanying the Anti-Trafficking Convention states: “328.     Paragraph 1 (a) is based on the territoriality principle. Each party is required to punish the offences established under the Convention when they are committed on its territory. For example, a Party in whose territory someone is recruited by one of the means and for one of the exploitation purposes referred to in Article 4 (a) has jurisdiction to try the human-trafficking offence laid down in Article 18. The same applies to Parties through or in whose territory that person is transported.” 3.     The Group of Experts on Action against Trafficking in Human Beings 61.     In its “Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Austria, First Evaluation Round” (GRETA(2011)10, 15 September 2011), the Group of Experts on Action against Trafficking in Human Beings (hereinafter “GRETA”) found the following: “In recent years, the Austrian authorities have taken a number of significant measures to combat trafficking in human beings (THB) on all fronts: prevention, protection of victims and prosecution of traffickers ... A series of measures designed to raise awareness on THB and to train relevant professionals have been taken by the Austrian authorities in co-operation with NGOs and intergovernmental organisations. GRETA welcomes the introduction in 2009 of special procedures to prevent THB for the purpose of domestic servitude in diplomatic households. That said, GRETA considers that the Austrian authorities should take further measures to raise awareness on the problem of THB, in particular as regards child trafficking and trafficking for the purpose of labour exploitation. More research is needed to shed light on the extent of these forms of trafficking and to guide the authorities in the development of policies to tackle them. ... As concerns measures to assist and protect victims of THB, the Austrian authorities have set up facilities and services, in co-operation with civil society, primarily tailored to the needs of female victims. The Federal Ministry of the Interior has introduced by an internal decree a recovery and reflection period of a minimum of 30 days for presumed victims of trafficking, during which time the person concerned should not be removed from Austria. However, the number of persons who have benefited from such a period is very low. ... The access to compensation for victims of THB remains limited in Austria, among other due to the low number of prosecutions and convictions of traffickers. ... Finally, GRETA considers that the Austrian authorities should review the current provisions criminalising THB with a view to addressing possible overlaps and ensuring the dissuasiveness of the penalties provided for, in order to reflect the fact that THB constitutes a serious violation of human rights. In addition, victims of trafficking should be better protected both during the legal proceedings against traffickers and afterward, in particular by making full use of the witness protection programme in respect to victims of trafficking. ... A special Central Unit in the Federal Criminal Intelligence Service within the Federal Ministry of the Interior is specialised in investigating THB and migrant smuggling. This unit has the power to conduct criminal investigations and is in regular contact with units of the regional criminal intelligence services specialised in combating THB and other serious criminal activities. In addition, it plays the role of an intermediary between the Austrian police and law enforcement agencies of other countries in the field of information exchange, participation in joint operations, etc. ... LEFÖ-IBF enjoys a special position compared to other NGOs involved in the fight against trafficking in human beings in Austria. It operates on the basis of an agreement with the Government and is financed though governmental funds, in particular for the provision of assistance to THB victims. ...” 4.     The ILO Forced Labour Convention 62.     The Convention concerning Forced or Compulsory Labour, adopted in Geneva on 28 June 1930 by the General Conference of the International Labour Organisation (hereinafter “the ILO”), entered into force on 1   May   1932. It was ratified by Austria on 7 June 1960. Pursuant to Article 1, “each Member of the ILO which ratifies this Convention undertakes to suppress the use of forced or compulsory labour in all its forms within the shortest possible period”. 63.     Article 2 § 1 defines “forced or compulsory labour” as: “...all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.” 64.     Article 25 provides: “The illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and it shall be an obligation on any Member ratifying this Convention to ensure that the penalties imposed by law are really adequate and are strictly enforced.” C.     European Union Law 1.     The EU Fundamental Rights Charter 65.     As a Member State of the European Union (hereinafter the “EU”) since 1 January 1995, Austria is bound to respect the rights enshrined in the EU Charter of Fundamental Rights when transposing or applying EU law. Article 5 of the Charter provides: Prohibition of slavery and forced labour “1.     No one shall be held in slavery or servitude. 2.     No one shall be required to perform forced or compulsory labour. 3.     Trafficking in human beings is prohibited.” 2.     The EU Anti-Trafficking Directive 66.     The relevant parts of Article 2 of Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its