CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 30 mars 2017

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GREECE   (Application no. 21884/15)             JUDGMENT               STRASBOURG   30 March 2017   FINAL   30/06/2017     This judgment is final but it may be subject to editorial revision. In the case of Chowdury and Others v. Greece, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Kristina Pardalos, President,   Linos-Alexandre Sicilianos,   Aleš Pejchal,   Robert Spano,   Armen Harutyunyan,   Tim Eicke,   Jovan Ilievski, judges, and Abel Campos, Section Registrar, Having deliberated in private on 7 March 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 21884/15) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by forty-two Bangladeshi nationals (“the applicants”), whose names are listed in an annex hereto, on 27 April 2015. 2.     The applicants were represented by Mr V. Kerasiotis, Mr Karavias and Ms Papamina (members of the Greek Council for Refugees), lawyers practising in Athens, and Mr J. Goldston and Mr S. Cox, respectively director and lawyer of the Open Society Justice Initiative. The Greek Government (“the Government”) were represented by their Agent’s deputies, Mr   K.   Georghiadis and Ms K. Nasopoulou, Advisers at the State Legal Council. Written comments were received from the Law School of Lund University in Sweden, the International Trade Union Confederation, the organisation Anti-Slavery International, the AIRE Centre (Advice for Individual Rights in Europe) and PICUM (Platform for International Cooperation on Undocumented Migrants), the President having given them leave to intervene in the written proceedings as third parties (Articles 36 §   2 of the Convention and Rule 44 § 3 (a) of the Rules of Court. 3.     The applicants alleged that their work in strawberry fields in Manolada, Greece, amounted to forced labour and that their situation constituted human trafficking (Article 4 of the Convention). 4.     On 9 September 2015 notice of the application was given to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicants, Bangladeshi migrants living in Greece without a work permit, were recruited on different dates between October 2012 and February 2013 in Athens and other places, to work on the region’s biggest strawberry farm, at Manolada, a village of two thousand inhabitants in the regional district of Elis, in the western part of the Peloponnese peninsula. In that area there are a number of production units, of various sizes, specialising in the intensive cultivation of strawberries. Exports account for 70% of the local production, which covers 90% of the Greek market. Most of the workers are irregular migrants from Pakistan and Bangladesh. Some are employed on the farms permanently and others only on a seasonal basis. 6.     The production unit in question was run by T.A. and N.V., the applicants’ employers. The applicants were among a total of 150 workers divided into three teams, each one headed by a Bangladeshi national who reported to T.A. 7.     The workers had been promised a wage of 22 euros (EUR) for seven hours’ work and three euros for each hour of overtime, with three euros per day deducted for food. They worked in greenhouses every day from 7 a.m. to 7 p.m. picking strawberries under the supervision of armed guards employed by T.A. They lived in makeshift shacks made of cardboard, nylon and bamboo, without toilets or running water. According to them, their employers had warned them that they would only receive their wages if they continued to work for them. 8.     On three occasions – in late February 2013, mid-March 2013 and on 15 April 2013 – the workers went on strike demanding payment of their unpaid wages, but without success. On 17 April 2013 the employers recruited other Bangladeshi migrants to work in the fields. Fearing that they would not be paid, between one hundred and one hundred and fifty workers from the 2012-2013 season who worked in the fields started moving towards the two employers, who were on the spot, in order to demand their wages. One of the armed guards then opened fire against the workers, seriously injuring thirty of them, including twenty-one of the applicants (listed under numbers 4, 6, 7, 8, 9, 14, 15, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29, 33, 38, 39 and 42). The wounded were taken to hospital and were subsequently questioned by police. 9.     On 18 and 19 April 2013 the police arrested N.V. and T.A., together with the guard who had fired the shots and another armed overseer. During the preliminary investigation by the local police, a number of other Bangladeshis, including some who had worked with the suspects, were used as interpreters. 10.     On 19 April 2013 the Amaliada public prosecutor charged the four suspects with attempted murder and other offences, and also, in response to a request from the prosecutor at the Court of Cassation, with human trafficking under Article 323A of the Criminal Code. The charge of attempted murder was subsequently reclassified as grievous bodily harm. 11.     On 22 April 2013 the Amaliada public prosecutor acknowledged that thirty-five workers – including four team-leaders –, who had all been injured during the incident, were victims of human trafficking, thus making them lawful residents under section 12 of Law no.   3064/2002 (on the repression of human trafficking, crimes against sexual freedom, child pornography, and more generally sexual exploitation). 12.     On 8 May 2013 one hundred and twenty other workers, including the twenty-one applicants who had not been injured (listed under numbers 1, 2, 3, 5, 10, 11, 12, 13, 16, 17, 18, 27, 30, 31, 32, 34, 35, 36, 37, 40 and 41), applied to the Amaliada public prosecutor for charges of human trafficking, attempted murder and assault, in respect of them also, to be brought against the four defendants. They stated that they had been employed on the farm run by T.A. and N.V. in conditions of human trafficking and forced labour and that they were part of the group which had come under fire. Relying on the Additional Protocol to the United Nations Convention against Transnational Organised Crime, known as the “Palermo Protocol”, of December   2000 (“to Prevent, Suppress and Punish Trafficking in Persons”), they asked the public prosecutor to bring charges under Article   323A of the Criminal Code against their employers, accusing them of exploiting them in a work-related context. They further alleged that, on 17 April 2013, they had also been present at the scene of the incident and that they had gone there to demand their unpaid wages, with the result that they were also victims of the offences committed against the other thirty-five complainants. 13.     The police questioned each of the above-mentioned twenty-one applicants, who signed a record containing their statements, which had been given under oath and were accompanied by their photos, and they forwarded the statements to the public prosecutor. 14.     In decision   26/2014 of 4 August 2014, the Amaliada public prosecutor rejected the application of the one hundred and twenty workers. He emphasised that those workers had been sought in order to give testimony during the preliminary investigation and that only one hundred and two of them had been traced and interviewed (including the twenty-one applicants mentioned in paragraph 12 above). He noted that it transpired from their statements and other material in the file that their allegations did not correspond to the reality. He explained that if they had really been the victims of the offences complained of, they would have gone to the police immediately on 17 April 2013, like the thirty-five other workers had done, and would not have waited until 8   May 2013. In his view, the claim that the complainants had been afraid and had left their huts was not credible because they had been close to the scene of the incident and, when the police arrived, they could have returned to make their complaints known. He further noted that only four out of the hundred and two complainants interviewed had stated they had been injured and that, unlike the thirty-five workers mentioned above, none of those four workers had gone to hospital. Lastly, he observed that all the complainants had stated that they had made statements to the police after learning that they would receive residence permits as victims of human trafficking. 15.     On 28 January 2015 the public prosecutor at Patras Court of Appeal dismissed the appeals of the one hundred and twenty workers against decision no.   26/2014 on the grounds that the material in the case file did not substantiate their allegations and that they had sought to present themselves as victims of human trafficking in order to obtain residence permits (decision no. 3/2015). 16.     The accused were committed to stand trial in Patras Assize Court. Only N.V. was charged with committing the offence of human trafficking. The three other defendants, namely T.A. and the two armed overseers, were charged with aiding and abetting that offence. The hearings began on 6 June 2014 and ended on 30 July 2014. The thirty-five workers mentioned above joined the proceedings as civil parties and were represented by their lawyers V. Kerasiotis and M. Karabeïdis, whose fees were paid by the Greek Council for Refugees and the Hellenic League for Human Rights. 17.     In his oral submissions the public prosecutor pointed out that the applicants who had been injured in the incident had been living and working in Greece without any permit, at the mercy of networks which exploited human beings and in conditions which enabled them to be characterised as victims of human trafficking. In his view both the material element and the mental element of this offence were made out in the present case. 18.     The public prosecutor further emphasised that exploitation in a labour context was part of the notion of exploitation provided for in European and other international law instruments as a means of committing the offence of human trafficking. He indicated that Article 4 of the Convention and Article   22 of the Greek Constitution prohibited forced or compulsory labour. He explained that the notion of exploitation through work included all acts which constituted a breach of employment law, such as the provisions concerning working hours, working conditions and workers’ insurance. In his view, that form of exploitation also obtained through the performance of work for the benefit of the offender himself. 19.     Referring to the facts of the case, the public prosecutor explained that the employer, N.V., had not paid the workers for six months, that he had only paid them a very small sum for food, deducted from their wages, and had promised to pay the rest later. He observed as follows: that the defendants were unscrupulous and imposed themselves by making threats and carrying weapons; the workers laboured in extreme physical conditions, had to work long hours and were constantly humiliated; on 17 April 2013, N.V. had informed the workers that he would not pay them and would kill them, with the help of his co-accused, if they did not carry on working for him; as the workers had not given in to the threats, he had told them to leave and said that he would take on another team in their place and that he would burn down their huts if they refused to leave. He lastly noted that, when he recruited them, N.V. had promised the complainants makeshift shelters and a daily wage of EUR 22 – which in his view was the only solution for the victims to be sure of a means of subsistence – and that N.V. had thus succeeded, at that point, in obtaining their consent in order to be able to exploit them subsequently. 20.     The public prosecutor asserted that the incident of 17 April 2013 was illustrative of a situation of over-exploitation and barbaric treatment to which the major landowners in the region had subjected the migrant workers. He took the view that the incident had been a barbaric and armed aggression by Greek employers against the migrants, conjuring up images of a “southern slave-trade” which had no place in Greece. 21.     At the hearing, one of the witnesses, an officer from the police station of Amaliada, stated that one or two days before the incident of 17 April 2013 some workers had gone to the police station to complain that their employers had refused to pay them their wages and that one of his colleagues had subsequently had a telephone conversation with N.V. on this subject. 22.     In a judgment of 30 July 2014, the Assize Court acquitted the four defendants on the charge of trafficking in human beings, on the ground that the material element of the offence was not made out in the present case. It convicted one of the armed guards and T.A. of grievous bodily harm and unlawful use of firearms, sentencing them to prison for terms of fourteen years and seven months and eight years and seven months, respectively. As regards the overseer who had been responsible for the shots, it took the view that he had not intended to kill those who were attacked in the incident and that he had been trying to make them move away so that the newly recruited workers would not be approached by them. As to N.V., it acquitted him on the ground that it had not been established that he was one of the workers’ employers (and therefore that he was obliged to pay them their wages) or that he had been involved as an instigator of the armed attack against them. The Assize Court commuted their prison sentences to a financial penalty of 5 euros per day of detention. It also ordered the two convicted men to pay the sum of EUR 1,500 to the thirty-five workers who were recognised as victims (about EUR 43 per person). 23.     The Assize Court noted that the workers’ conditions of employment had provided that they would receive: EUR 22 for seven hours of work and EUR 3 for each additional hour; food, of which the cost would be deducted from their wages; and materials for the construction of electrified huts next to their plantations, at their employers’ expense, to satisfy their basic accommodation needs – while allowing them the option of living elsewhere in the region. It noted that these conditions had been brought to the knowledge of the workers by their fellow countrymen who were team-leaders. 24.     The Assize Court thus observed that the workers had been informed of their conditions of employment and that they had accepted them after finding them satisfactory. As to the amount of the wages, it found that this was the usual amount paid by the other producers in the region and the workers had not been obliged to accept it. In the court’s view, the information provided to the workers by their team-leaders and their compatriots working for other employers about the reliable payment of wages constituted a major factor in the choice of T.A. as employer. The Assize Court further noted that, until the end of February 2013, the workers had not made any complaint about their employer, whether concerning his conduct or the payment of wages, and they had only started to complain at the end of February or the beginning of March 2013 about a delay in payment. 25.     Moreover, the Assize Court rejected the workers’ allegations that they had not received any wages and had been subjected to a threatening and intimidating attitude, on the part of the defendants, throughout the duration of their work, on the following grounds: those allegations had been expressed for the first time at the hearing, and not at the stage of the preliminary enquiries or investigation; certain intimidating acts had led the complainants to leave their place of work; and the description of these acts was particularly imprecise and vague. The Assize Court also noted that it transpired from the testimony of the workers that, during their free time, they were able to move freely around the region, do their shopping in shops which operated by agreement with the defendants, play cricket and take part in an association set up by their compatriots. It added that it had not been shown that T.A. had, under false pretences and by means of promises, coerced the workers into agreeing to work for him by taking advantage of their situation of vulnerability, especially as it found that they were not in such a situation. 26.     The Assize Court took the view that it had also been shown that the relations between the workers and their employers had been governed by a binding employment relationship and its conditions were not intended to trap the workers or to lead to their domination by the employers. On that point, it explained that the conditions had not led the complainants to live in a state of exclusion from the outside world, without any possibility for them to abandon this relationship and look for another job. It further noted that the workers had been in a position to negotiate their conditions of employment at the time of their recruitment and that their unlawful presence in Greece had not been used by their employers as a means of coercion to force them to continue working. 27.     The Assize Court indicated that, for the notion of vulnerability to be constituted, the victim had to be in a state of impoverishment such that his refusal to submit to the offender would appear absurd; in other words the victim had to be in a state of absolute weakness preventing him from protecting himself. It added that the victim would be exploited, as a result of his vulnerability, if he unconditionally submitted himself to the offender and was cut off from the outside world, which in the court’s view was not the case here since: (a) the relations between the workers and their employers had been governed by a binding employment relationship, and (b) its conditions were not intended to trap the workers or to lead to their domination by the employers, such that the workers might be cut off from the outside world and find it impossible to withdraw from the employment relationship and find another job. The Assize Court further observed that most of the workers had stated that they would have continued to work for their employers had they been paid their wages. 28.     Lastly, as to the workers’ allegation that they had received death threats from the defendants – an allegation that it did not accept –, the Assize Court took the view that, if that statement had been true the workers would have left their place of work without hesitation. The fact of fearing for their lives would have prevailed over any other consideration (such as: their unpaid wage demands; their need to earn a living, which allegedly could not have been satisfied in view of the objective inability to find another job; and all the other arguments that the workers had put forward to justify the fact that they had continued to work). 29.     On 30 July 2014 the convicted defendants appealed against the judgment of the Assize Court. The appeal, which is still pending before that same court, has suspensive effect. 30.     On 21 October 2014 the workers’ lawyers lodged an application with the public prosecutor at the Court of Cassation asking him to appeal against the Assize Court judgment. In their application they submitted that the Assize Court had not adequately examined the charge of human trafficking. They took the view that, in order to determine whether that court had properly applied Article 323A of the Criminal Code, it was necessary to examine whether the accused had taken advantage of any vulnerability of the foreign nationals in order to exploit them. 31.     On 27 October 2014 the prosecutor refused to lodge an appeal. He gave reasons for his decision, indicating only that the statutory conditions for an appeal on points of law were not met. As a result of this decision, the part of the 30 July 2014 judgment concerning human trafficking became “irrevocable” ( αμετάκλητη ). II.     RELEVANT DOMESTIC LAW 32.     Article 22 § 3 of the Constitution provides: “Any form of compulsory labour shall be prohibited.” 33.     Article 323 (slave trading) of the Criminal Code and Article 323A (human trafficking) of the same Code, as amended by Law no. 3064/2002 (amending the Criminal Code in matters of human trafficking, pornography, incitement of a minor to immorality, assisting or benefiting from prostitution, victim assistance) read as follows: Article 323 “1. Anyone who practises slave trading shall be punished with imprisonment. 2. Slave trading includes any act of capture, appropriation and disposal of an individual which seeks to make him a slave, any act of acquisition of a slave for the purpose of resale or exchange, the act of assignment by sale or exchange of an already acquired slave and, generally speaking, any act of trafficking or transporting of slaves. ...” Article 323A “1. Anyone who, through the use or threat of force, or any other means of coercion or abuse of authority or power or abduction, recruits, transports, brings into the country, confines, harbours, delivers – with or without consideration – or obtains from a third party, any person, with the aim of taking cells, tissue or organs from that person, or of exploiting that person’s work or begging, whether this is done for personal gain or on behalf of another, shall be punished with imprisonment of up to ten years and a fine of between EUR 10,000 and EUR 50,000. 2. The above-mentioned punishment shall also be imposed on offenders who, pursuing the same purpose, obtain the consent of any person or attract the latter under false pretences, taking advantage of the person’s vulnerability, by means of promises, gifts, sums of money or other benefits. 3. Anyone who, with full knowledge of the facts, accepts the work provided by persons who have been subjected to the conditions described in paragraphs 1 and 2 above, shall be punished with imprisonment for a minimum term of six months. 4. Anyone who has committed the offence provided for in the preceding paragraphs shall be punished with imprisonment for at least ten years and a fine of between EUR 50,000 and EUR 100,000 where the offence: ... (b) has been committed as a profession; ... (d) has as a consequence particularly serious harm to the health of the victim or has exposed the victim’s life to grave danger.” 34.     In its judgment no. 673/2011 the Court of Cassation pointed out that, as regards trafficking in human beings (Article 323A of the Criminal Code), the element of physical domination of the victim by the perpetrator of the offence was differentiated both quantitatively and qualitatively, in terms of its substance and duration, from slave trading (Article 323 of the Criminal Code), since it did not require either the total subjugation of the victim or the constant and uninterrupted domination of him by the perpetrator. The Court of Cassation held that acts of unlawful violence, threats, blackmail and forcible confinement constituted the means of committing the crime of trafficking in human beings, and that the principle whereby such acts are subsumed under that crime prevailed over the principle of the concurrence of offences. As to the mental element of the offence, the Court of Cassation held that the perpetrator must have acted with malicious intent. It stated that the existence of that intent stemmed from the knowledge and willingness of the perpetrator to recruit, transport, take away, assist or unlawfully confine a person by means of the use of force or threats, and for the purpose of exploiting that person’s work. In its view, such exploitation obtained where the victim provided his work either directly for the benefit of the perpetrator of the offence or for the benefit of third parties who would remunerate the latter, and recklessness was not sufficient. 35.     The Criminal Code does not contain specific provisions on forced labour. Article 323A was incorporated into this Code by Law no. 3064/2002 (punishing trafficking in human beings, crimes against sexual freedom, child pornography and, more generally, sexual exploitation) which had transposed Framework Decision no. 2002/629/JHA of the Council of the European Union of 19 July 2002 on combating trafficking in human beings. This instrument was replaced by Directive 2011/36 of the European Parliament and of the Council of the European Union of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, which was transposed in Greece by Law no. 4198/2013 of 11 October 2013. 36.     Section 4 of Law no. 4198/2013 amended certain articles of the Code of Criminal Procedure and added an Article 226B (witnesses – victims of trafficking in human beings and of the offence of assisting or benefiting from prostitution) of which the relevant part reads as follows: “1. When a victim of the acts mentioned in Articles 323A ... of the Criminal Code is interviewed as a witness, a psychologist or a psychiatrist shall be appointed as expert ... 2. The psychologist or psychiatrist shall prepare the victim for the interview, in collaboration with the investigators and judges. To that end he will use appropriate methods of diagnosis, will give an opinion as to the victim’s cognitive capacity and mental state and make written observations in a report which will form an integral part of the file. ... 3. The victim’s statement shall be taken down in writing and recorded electronically where possible. ... 4. The victim’s written statement shall be read out at the public hearing. ...” 37.     Prior to the present case, Greece had already ratified the Geneva Convention to Suppress the Slave Trade and Slavery of 25 September 1926, Convention no. 29 of the International Labour Organisation (ILO) of 28   June 1930 on forced labour (“ILO Convention no. 29”), together with the Supplementary Convention on the Abolition of Slavery of 30   April 1956 and the “Palermo Protocol” of December 2000. As to the Council of Europe Convention on Action against Trafficking in Human Beings of 16 May 2005, Greece signed it on 17 November 2005 and ratified it on 11 April 2014. That Convention entered into force on 1 August 2014 III.     RELEVANT INTERNATIONAL LAW 38.     The Court would refer to paragraphs 49 to 51 of its judgment in Siliadin v.   France (no. 73316/01, ECHR 2005 ‑ VII) and to paragraphs 137 to 174 of the judgment in Rantsev v. Cyprus and Russia (no. 25965/04, ECHR 2010), which set out the relevant provisions of international conventions concerning forced labour, servitude, slavery and human trafficking (Geneva Slavery Convention of 25 September 1926; ILO Convention no. 29; Convention for the Suppression of Traffic in Persons and of the Exploitation of the Prostitution of Others, 2 December 1949; Supplementary Convention on the Abolition of Slavery, 30 April 1956; ILO Forced Labour Convention (Convention no. 105) of 1957; “Palermo Protocol” of December 2000; Council of Europe Convention on Action against Trafficking in Human Beings, 16 May 2005, and relevant extracts from the Council of Europe’s work in this field (Parliamentary Assembly recommendations no. 1523 of 26 June 2001 and no.   1623 of 22 June 2004; Explanatory Report on Anti-Trafficking Convention). A.     International Labour Organisation 39.     Article 2 § 1 of ILO Convention no. 29 reads as follows: “   ... the term forced or compulsory labour shall mean 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.” 40.     Also noteworthy are the following extracts from the Global Report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, entitled “The Cost of Coercion”, adopted by the International Labour Conference in 2009: “24.     The ILO’s definition of forced labour comprises two basic elements: the work or service is exacted under the menace of a penalty and it is undertaken involuntarily. The work of the ILO supervisory bodies has served to clarify both of these elements. The penalty does not need to be in the form of penal sanctions, but may also take the form of a loss of rights and privileges. Moreover, the menace of a penalty can take many different forms. Arguably, its most extreme form involves physical violence or restraint, or even death threats addressed to the victim or relatives. There can also be subtler forms of menace, sometimes of a psychological nature. Situations examined by the ILO have included threats to denounce victims to the police or immigration authorities when their employment status is illegal, or denunciation to village elders in the case of girls forced to prostitute themselves in distant cities. Other penalties can be of a financial nature, including economic penalties linked to debts. Employers sometimes also require workers to hand over their identity papers, and may use the threat of confiscation of these documents in order to exact forced labour. 25. As regards ‘voluntary offer’, the ILO supervisory bodies have touched on a range of aspects including: the form and subject matter of consent; the role of external constraints or indirect coercion; and the possibility of revoking freely-given consent. Here too, there can be many subtle forms of coercion. Many victims enter forced labour situations initially out of their own choice, albeit through fraud and deception, only to discover later that they are not free to withdraw their labour, owing to legal, physical or psychological coercion. Initial consent may be considered irrelevant when deception or fraud has been used to obtain it.” B.     United Nations 41.     Article 3 (a) of 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, provides as follows: “For the purposes of this Protocol: (a) ‘Trafficking in persons’ shall mean 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.” C.     Council of Europe 42.     The relevant provisions of the Council of Europe Convention on Action against Trafficking in Human Beings (“the Council of Europe Anti-Trafficking Convention”) read as follows: Article 4 – Definitions “For the purposes of this Convention: a ‘Trafficking in human beings’ shall mean 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; b The consent of a victim of ‘trafficking in human beings’ to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; c The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered "trafficking in human beings" even if this does not involve any of the means set forth in subparagraph (a) of this article; d ‘Child’ shall mean any person under eighteen years of age; e ‘Victim’ shall mean any natural person who is subject to trafficking in human beings as defined in this article. Article 5 – Prevention of trafficking in human beings “1.     Each Party shall take measures to establish or strengthen national co-ordination between the various bodies responsible for preventing and combating trafficking in human beings. 2.     Each Party shall establish and/or strengthen effective policies and programmes to prevent trafficking in human beings, by such means as: research, information, awareness raising and education campaigns, social and economic initiatives and training programmes, in particular for persons vulnerable to trafficking and for professionals concerned with trafficking in human beings. ...” Article 10 – Identification of victims “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.” Article 13 – Recovery and reflection period “1. Each Party shall provide in its internal law a recovery and reflection period of at least 30 days, when there are reasonable grounds to believe that the person concerned is a victim. Such a period shall be sufficient for the person concerned to recover and escape the influence of traffickers and/or to take an informed decision on cooperating with the competent authorities. During this period it shall not be possible to enforce any expulsion order against him or her. This provision is without prejudice to the activities carried out by the competent authorities in all phases of the relevant national proceedings, and in particular when investigating and prosecuting the offences concerned. During this period, the Parties shall authorise the persons concerned to stay in their territory. 2. During this period, the persons referred to in paragraph 1 of this Article shall be entitled to the measures contained in Article 12, paragraphs 1 and 2. 3 The Parties are not bound to observe this period if grounds of public order prevent it or if it is found that victim status is being claimed improperly.” Article 15 – Compensation and legal redress “Each Party shall ensure that victims have access, as from their first contact with the competent authorities, to information on relevant judicial and administrative proceedings in a language which they can understand. 2 Each Party shall provide, in its internal law, for the right to legal assistance and to free legal aid for victims under the conditions provided by its internal law. 3 Each Party shall provide, in its internal law, for the right of victims to compensation from the perpetrators. 4 Each Party shall adopt such legislative or other measures as may be necessary to guarantee compensation for victims in accordance with the conditions under its internal law, for instance through the establishment of a fund for victim compensation or measures or programmes aimed at social assistance and social integration of victims, which could be funded by the assets resulting from the application of measures provided in Article 23.” 43.     The relevant passages from the above-mentioned Explanatory Report accompanying the Convention read as follows: “74. In the definition, trafficking in human beings consists in a combination of three basic components, each to be found in a list given in the definition: – the action of: ‘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, which includes ‘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’. 75. Trafficking in human beings is a combination of these constituents and not the constituents taken in isolation. ... 76. For there to be trafficking in human beings ingredients from each of the three categories (action, means, purpose) must be present together. ... 77. Thus trafficking means much more than mere organised movement of persons for profit. The critical additional factors that distinguish trafficking from migrant smuggling are use of one of the means listed (force, deception, abuse of a situation of vulnerability and so on) throughout or at some stage in the process, and use of that means for the purpose of exploitation. ... 81. The means are the threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position of vulnerability, and giving or receiving payments or benefits to achieve the consent of a person having control over another person. 82. Fraud and deception are frequently used by traffickers, as when victims are led to believe that an attractive job awaits them rather than the intended exploitation. 83. By abuse of a position of vulnerability is meant abuse of any situation in which the person involved has no real and acceptable alternative to submitting to the abuse. The vulnerability may be of any kind, whether physical, psychological, emotional, family-related, social or economic. The situation might, for example, involve insecurity or illegality of the victim’s administrative status, economic dependence or fragile health. In short, the situation can be any state of hardship in which a human being is impelled to accept being exploited. Persons abusing such a situation flagrantly infringe human rights and violate human dignity and integrity, which no one can validly renounce. ... 85. The purpose must be exploitation of the individual. The Convention provides: ‘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’. National legislation may therefore target other forms of exploitation but must at least cover the types of exploitation mentioned as constituents of trafficking in human beings. 86. The forms of exploitation specified in the definition cover sexual exploitation, labour exploitation and removal of organs, for criminal activity is increasingly diversifying in order to supply people for exploitation in any sector where demand emerges. ... 89. Nor does the Convention define “forced labour”. Nonetheless, there are several relevant international instruments, such as the Universal Declaration of Human Rights (Article 4), the International Covenant on Civil and Political Rights (Article 8), the 1930 ILO Convention concerning Forced or Compulsory Labour (Convention No. 29), and the 1957 ILO Convention concerning the Abolition of Forced Labour (Convention No. 105). 90. Article 4 of the ECHR prohibits forced labour without defining it. The authors of the ECHR took as their model the ILO Convention concerning Forced or Compulsory Labour (No.29) of 29 June 1930, which describes as forced or compulsory ‘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’. In the case Van der Müssele v. Belgium (judgment of 23 November 1983, Series A, No.70, paragraph 37) the Court held that ‘relative weight’ was to be attached to the prior-consent criterion and it opted for an approach which took into account all the circumstances of the case. In particular it observed that, in certain circumstances, a service ‘could not be treated as having been voluntarily accepted beforehand’. It therefore held that consent of the person concerned was not sufficient to rule out forced labour. Thus, the validity of consent has to be evaluated in the light of all the circumstances of the case. ... 97. Article 4(b) states: ‘The consent of a victim of “trafficking in human beings” to the intended exploitation set forth in sub-paragraph (a) of this article shall be irrelevant where any of the means set forth in sub-paragraph (a) have been used’. The question of consent is not simple and it is not easy to determine where free will ends and constraint begins. In trafficking, some people do not know what is in store for them while others are perfectly aware that, for example, they will be engaging in prostitution. However, while someone may wish employment, and possibly be willing to engage in prostitution, that does not mean that they consent to be subjected to abuse of all kinds. For that reason Article 4(b) provides that there is trafficking in human beings whether or not the victim consents to be exploited.” 44.     Further, it its Fourth General Report on its activities (for the period 1 August 2013 to 30 September 2014), the Council of Europe’s Group of Experts on Action against Trafficking in Human Beings (GRETA) reported as follows: “GRETA has noted that some countries focus almost exclusively on THB [trafficking in human beings] for sexual exploitation and not enough is done to conceive prevention measures addressing trafficking for other purposes. For example, GRETA has urged the Spanish authorities to develop measures to raise awareness of THB for the purpose of labour exploitation and to organise information and education activities about THB, including for children.” Then in its Fifth General Report (for the period from 1 October 2014 to 31 December 2015), GRETA added as follows: “94. Article 10 of the Convention places a positive obligation on States Parties to identify victims of trafficking. The Convention requires that the competent authorities have staff who are trained and qualified in identifying and helping victims, including children, and that the authorities collaborate with one another and with relevant support organisations, such as NGOs. Victim identification is a process that takes time. Even when the identification process in not completed, as soon as the competent authorities consider that there are reasonable grounds to believe that a person is a victim, he/she must not be removed from the territory of the state concerned, be it to the country of origin or a third country. ... 97.     GRETA also observed in Italy that the detection of victims of human trafficking for the purpose of labour exploitation was particularly complicated due to the significant size of the ‘informal economy’ in certain sectors. As the Italian immigration laws do not offer a possibility for legal employment for workers who already are irregularly in Italy, their only possibility of being employed is in the informal economy, very often under exploitative conditions. Economic sectors where the exploitation of high numbers of irregular migrants is common include agriculture, the construction sector and the textile industry. GRETA urged the Italian authorities to take steps to reduce the particular vulnerability of irregular migrants to trafficking in human beings and invited them to study the implications of the immigration legislation, in particular the offence of illegal entry and stay, for the identification and protection of victims of trafficking, and the prosecution of offenders. 98. In the report concerning Spain, GRETA was concerned by the lack of training and awareness of the rights of victims of trafficking among border police officers, asylum officials, staff at temporary reception centres for aliens (particularly in the Autonomous Cities of Ceuta and Melilla), staff in reception centres for asylum seekers, reception centres for irregular migrants where third-country nationals await expulsion, and judicial bodies responsible for issuing expulsion orders.” D.     European Union 45.     Article 5 of