CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 19 juillet 2018

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CROATIA   (Application no. 60561/14)             JUDGMENT     STRASBOURG   19 July 2018       THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 25/06/2020           This judgment may be subject to editorial revision.   In the case of S.M. v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Linos-Alexandre Sicilianos, President,   Kristina Pardalos,   Krzysztof Wojtyczek,   Ksenija Turković,   Armen Harutyunyan,   Pauliine Koskelo,   Jovan Ilievski, judges, and Abel Campos, Section Registrar, Having deliberated in private on 17 April and 19 June 2018, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 60561/14) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Ms S.M. (“the applicant”), on 27   August 2014. The President of the Section acceded to the applicant’s request not to have her name disclosed (Rule 47 § 4 of the Rules of Court). 2.     The applicant was represented by Ms S. Bezbradica Jelavić, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.     The applicant alleged, in particular, that the domestic authorities had failed to comply with their procedural obligations under Article 4 of the Convention as regards her allegations of being forced into and exploited through prostitution. 4.     On 9 February 2015 the complaints concerning the lack of an effective procedural response by the domestic authorities to her allegations of human trafficking, under Articles 3, 4 and 8 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1990 and lives in Z. Owing to problems in her family, between 2000 and 2004 she lived with a foster family. Then she moved to a public home for children and young persons, where she stayed until she completed her professional training as a waiter. 6.     On 27 September 2012 the applicant lodged a criminal complaint with the Z. police against a certain T.M., a former policeman, alleging that in the period between the summer of 2011 and September of the same year he had physically and psychologically forced her into prostitution. He had given her a mobile telephone so that clients could contact her and had driven her to meet clients in various places. He had also forced her to give sexual services in the flat where they had lived together. During that whole period she had been under the control of T.M. When she had refused to give sexual services to other men, he had physically punished her. After she had left him, he had threatened her and her family and had attempted to contact her through a social-networking website. 7.     The criminal record of T.M. showed that in 2005 he had been convicted of the criminal offences of pandering and rape and sentenced to six years’ and six months’ imprisonment. He was released from prison on a conditional leave in May 2009 and the conditional leave expired in June 2010. 8.     The Z. County State Attorney’s Office opened an investigation in respect of T.M. On 10 October 2012, following an order by the Z. County Court, the police conducted a search and seizure of T.M.’s premises, where they found, inter alia , several pieces of automatic rifles, a number of mobile phones and condoms. 9.     On 16 October 2012 the applicant gave her evidence to the prosecuting authorities. She said that T.M. had first contacted her at the beginning of 2011 through a social-networking website and that he had already known her mother and introduced himself as a friend of her parents. She had met T.M. on various occasions in cafés and she had asked him to help her in finding a job. T.M. had told her that he could find a job for her as a waitress or a shop assistant. One day at the beginning of July 2011 he had told her that he would take her to one of his friends who could help her in finding a job. When they had arrived at the house of that man T.M. had told the applicant to go to a room with him. The man had then told the applicant that he had expected sexual services from her. The applicant had said that she had not wanted to do it. That man had also told her that he had answered an advertisement on the Internet under the name Smokvica (“little fig”) and that T.M. had told him that T.M. and the applicant had been a husband and wife who “[had done] such things together”. T.M., who had been eavesdropping outside the room, had stormed into the room and started to shout at her and slap her and had then told her that she had been there with a purpose, that she should not have behaved like that. The man had secretly given her 400 Croatian kunas (HRK); when she had told T.M. about that, he had then taken that money from her. At that time she had still lived with her friend K.Č. who had no knowledge of the events at issue. T.M. had again contacted her and told her that they had needed to talk about what had happened. She had agreed to meet him but they had not discussed what had happened. A few days later T.M. had given her a mobile telephone so that clients seeking sexual services could contact her. T.M. had also told the applicant that she had had to give her physical description to men who would contact her and charge HRK   400 for half an hour of sexual services or HRK 600 for an hour, and that she had had to give half of that money to T.M. The applicant also said that she had acquiesced to all that because she had been scared of T.M. and that he had threatened to tell all to her parents. Some ten days after that T.M. had rented a flat, where the applicant and T.M. had then lived together. She had provided sexual services in that flat and on five to six occasions T.M. had driven her to clients. During the period in question she had had about thirty clients. Since T.M. had lived in the same flat with her, he had controlled everything she had been doing. When she had refused to have sexual intercourse with him or when he had been dissatisfied with the manner in which she had given sexual services to clients, T.M. had beaten her. He had beaten her every couple of days. Questioned as to why she had not contacted the police earlier, the applicant answered that she had been afraid of T.M. Once, when he had been out of the flat and had left the key, the applicant had called her friend M.I., who had known that the applicant had been giving sexual services to men for money. The applicant had asked M.I. to help her escape. After that M.I.’s boyfriend, T., had arrived by taxi, helped the applicant to collect her things and taken her to M.I.’s home. She had stayed with M.I. for about ten days. The applicant also said that T.M. had told her that he had previously had a girlfriend, A., whom he had “treated in the same way” and later on he had told her that after her, the applicant, he had had another girlfriend whom he had “helped in it”. T.M. had told the applicant that he had filmed those girlfriends and punished them when they had been “insolent”. 10.     On 6 November 2012 M.I. gave her evidence to the prosecuting authorities. She said that she had never met T.M. but that the applicant was her friend and she had known her for some two years. M.I.’s last contact with the applicant, before the applicant had come to her flat, had been some eight or nine months previously. M.I. had known already at the end of 2010, beginning of 2011 that the applicant had been giving sexual services for money because the applicant had told her so. At the end of summer 2011 the applicant had suddenly come to her home with a bag containing her things. M.I. had then learned that the applicant had agreed with M.I.’s mother to come to stay with them, but did not know any details since she (M.I.) was not in very good relations with her mother. The applicant had told her about T.M., from whom she had escaped because she had no longer wished to be involved in prostitution “for him”. Before the applicant had come to her flat M.I. had not known where or for whom the applicant “did that”. Only then had M.I. learned that the applicant “had being doing it for T.M.”. The applicant had been very distressed and scared. She had told M.I. that T.M. had repeatedly beaten her; watched her through a key lock when she had been giving sexual services to clients and afterwards also beaten her for “not being in a position he had approved of”. M.I. also said that in her understanding the applicant had voluntarily given sexual services because she had needed money. The applicant had told her that she had had an agreement with T.M. to work for him and to share the money, that she had had a mobile telephone for clients to call her and that there had been a small ad through which she had been contacted for appointments by clients. The applicant had said that T.M. had given her that mobile telephone and placed the advertisement. M.I. also said that she could not remember if the applicant had told her that she had opposed T.M. It was true that the applicant had said that she had not wished to “do it” but in M.I.’s understanding that had rather meant that the applicant had been “doing it” because she had had no other means to earn money. The applicant had also told her that T.M. had slapped her for very minor reasons which she (the applicant) had not expected. When she had refused sexual relations with him T.M. would beat her and the applicant had not known what would make him “explode again”. T.M. had also told the applicant that he had had another girlfriend who had worked for him and whom he had also beaten. The applicant told M.I. that she had used the opportunity to run away from T.M. when he had been out of the flat where they had lived. M.I.’s boyfriend, T.R., had told her that he had spoken with the applicant but he had not given any details. M.I. had broken up with him a week after that but still had his address. M.I. also said that the applicant had stayed with her and her mother for several months and that T.M. had continued to contact the applicant through a social-networking website and had threatened her as well as her mother. He had also sent messages, saying that he had loved her and asking her to come back to him. 11.     On 6 November 2012 the Z. County State Attorney’s Office indicted T.M. in the Z. Criminal Court on charges of forcing another to prostitution, as an aggravated offence of organising prostitution under Article 195 of the Criminal Code. 12.     On 21 December 2012 the applicant was officially given the status of victim of human trafficking by the Office for Human and Minority Rights of the Government of Croatia ( Vlada Republike Hrvatske , Ured za ljudska prava i prava nacionalnih manjina ). On the same day the police contacted the Croatian Red Cross and its employees informed the applicant of her rights (accommodation, medical check-ups, psycho-social support, legal aid and material support). The applicant told them that she was not interested in the right to safe accommodation since she lived with her mother and sister. According to the Government the applicant contacted the Croatian Red Cross on twelve occasions between 17 January 2013 and 24   April 2015. She received psycho-social support through individual counselling and material support. The Croatian Red Cross also organised individual counselling for the applicant with a psychologist in the Centre for Cognitive-Behavioural Therapy. Further to this the applicant was provided legal aid by a non-governmental organisation, the R. Centre, within the legal-aid scheme supported by the State. 13.     The summons served on the applicant contained detailed information on her rights as a victim, such as psychological and practical support and of the possibility to contact the Department for Organising and Providing Support for Witnesses and Victims within the Z. Municipal Criminal Court. Contact details of that Department were also provided. 14.     At hearings held on 13 January and 15 February 2013 T.M. gave his evidence. He denied that he had forced the applicant into prostitution. He confirmed that he had contacted the applicant through a social-networking website because he had recognised her surname since he had known her parents. He had also known that the applicant’s mother had been a prostitute. T.M. and the applicant had started to see each other and the applicant had told him that she had had no money and needed a job and that she had some debts. The applicant had also told him that previously she had given sexual services for money and had kept telephone numbers of her clients and asked him whether he could take her sometimes to those clients, which he had done. He confirmed that he had been in a relationship with the applicant during that time. However, he had not lived with her in the flat she had rented but only sometimes spent a night there. He had had the keys of that flat and the applicant had had them as well and she had been free to come and go as she liked. He had also been in the flat on some of the occasions when the applicant had given sexual services there. He had known that the applicant had charged HRK 400 for half an hour and HRK 600 for a full hour but these prices had been set by her and not him. Initially he had lent her some money and from that sum she had bought a mobile telephone on which clients could contact her. Later on she had returned the money she had borrowed from him. She had also given him some money even though he had been reluctant to take it but she had insisted telling him that it had been for petrol. However, it had mostly been he who had given money to the applicant because she had constantly complained that she had had no money. He admitted that he had slapped the applicant once when they quarrelled about her refusal to work in a bakery. He also said that he had found her a job in a restaurant but that after he had told her about it she had disappeared. 15.     Both the applicant and M.I. gave their evidence at a hearing held on 29   January 2013. A lawyer was provided to the applicant by the R. Centre. Before giving her evidence the applicant told the trial court that she feared the accused. The accused was then removed from the courtroom and the applicant gave evidence in his absence. 16.     The minutes of that hearing indicate that the applicant repeated her statement given on 16 October 2012 (see paragraph 9 above) and also said that T.M. had told her that he had been a former policeman and together with her father in the war. Her father had confirmed that and had said that T.M. was “an okay person”. Her mother on the other had told her that he was not a reliable person. After the first time T.M. had driven her to give sexual services to another man, she had sat in the backseat of his car. T.M. had been very angry and had been nagging her and at one moment he had stopped the car and slapped her. She had exited the car, attempting to run away but he had caught up with her and taken her back to the car. She had agreed to meet him the next day because he had told her that they would discuss what had happened but they had not. She had been afraid of him and for that reason had agreed to give sexual services to other men and also because he had threatened her that he would “tell all” to her parents and that he would “cram her mother into prison”. T.M. had found the flat to rent, but the applicant had signed the contract and paid the rent for the flat. She had not had the keys to that flat. Even though on three to four occasions he had allowed her to leave the flat alone to go to a nearby shop, she had not dared to flee because T.M. had followed where she had been going from the balcony and she had been scared of him. He had set some rules for her: she had been forbidden to talk with the clients; the clients had not been able to touch her; and she had been allowed to give sexual services only in the manner ordered by T.M. When she had refused to have sexual intercourse with him or when he had been dissatisfied with the manner in which she had given sexual services to clients, T.M. had beaten her. Questioned again as to why she had not contacted the police earlier, the applicant said that T.M. had told her that he had “connection” at the police and that he would very soon learn if she reported “anything”. Questioned as to why she had not attempted to run away when T.M. had driven her to the clients the applicant said that she had been sure that T.M. would have found her and that she had been allowed to stay with the clients for exactly twenty-nine minutes. When the applicant had called her friend M.I., who had known that the applicant had been giving sexual services to men for money, the applicant had asked M.I. to help her escape. She had also spoken with M.I.’s mother. T.M. had continued to contact her through a social-networking website, at first sending her love messages and then threatening to tell all to her parents. Then T.M. had sent a letter to the authorities, accusing the applicant’s mother of neglecting the applicant’s younger sister. Her mother had been asked to come to a police station on that account. The applicant had then decided to contact the police. The applicant also explained that she had been very much scared of T.M., that she had feared for her life because he had threatened to “beat her to death”. T.M. had also threatened her with publishing naked photographs of her. She had agreed to being photographed because she had been scared of him. T.M. had also told her that as a former policeman he had known a lot of policemen and if she had reported him he would have fabricated stories about her. Later on she had learned from her mother that T.M. and her mother had lived together for a while and that a former girlfriend of T.M. had reported him to the police for forcing her to give sexual services to other men. 17.     M.I. repeated her statement given before the prosecuting authorities (see paragraph 10 above). 18.     On 15 February 2013 the Z. Criminal Court acquitted T.M. on the grounds that although it had been established that he had organised a prostitution ring in which he had recruited the applicant, it had not been established that he had forced her into prostitution. However, he had only been indicted for the aggravated form of the offence at issue and thus he could not be convicted for the basic form of organising prostitution. In finding this, the trial court in particular noted that it could not give sufficient weight to the applicant’s testimony because her statement had been incoherent, she had been unsure and that she had paused and hesitated when speaking. At the same time, given that there was no other conclusive evidence, it applied the in dubio pro reo principle and acquitted T.M. The relevant part of the first-instance judgment reads: “On the basis of the evidence given by the accused and the victim in these criminal proceedings the following facts have been established: that the accused and the victim met through the social network Facebook when the accused contacted the victim; ... that the accused gave a mobile telephone to the victim so that she could be contacted by the clients with whom she discussed providing sexual services; that the victim indeed did provide sexual services in the flat where she lived with the accused; that on five or six occasions the accused drove the victim to the addresses of clients where she provided sexual services; that the victim charged for providing sexual services the sum of HRK 400 for half an hour and the sum of HRK 600 for an hour ...” 19.     The State Attorney’s Office appealed against this decision, arguing that the first-instance court had erred in its factual findings concerning the charges against T.M. when it did not accept the applicant’s testimony. 20.     On 21   January 2014 the Z. County Court dismissed the appeal of the State Attorney’s Office and upheld the first-instance judgment, endorsing its reasoning as well as the facts as established by the trial court. That decision was served on the applicant on 28 February 2014. 21.     On 31 March 2014 the applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ), complaining about the manner in which the criminal-law mechanisms had been applied in her case. She relied on Articles 14, 23, 29 and 35 of the Constitution (see below paragraph 23) and Articles 3, 6, 8 and 14 of the Convention. In particular, she alleged that the national authorities had not properly investigated and addressed the element of force. Also, owing to the failure of the authorities to reclassify the offence, T.M. had not been convicted of any offence, to the applicant’s detriment. She further stressed that she had not been provided with any psychological help or assistance during the court hearing to help cope with the fear and pressure she had felt from T.M. while testifying, which all resulted in her testimony being regarded as incoherent by the trial court. The applicant also alleged a failure of the authorities to secure effective respect for her private life in particular through the domestic court’s inadequate assessment of all the relevant circumstances in which she had been recruited to T.M.’s prostitution ring. 22.     On 10 June 2014 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the applicant had not had the right to bring a constitutional complaint concerning the criminal proceedings against T.M. since these proceedings had concerned a criminal charge against him. The decision of the Constitutional Court was served on the applicant’s representative on 1 July 2014. II.     RELEVANT DOMESTIC LAW A.     The Constitution 23.     The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske , Official Gazette nos. 56/1990, 135/1997, 113/2000, 28/2001, 76/2010 and 5/2014) read as follows: Article 14 “Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics. All shall be equal before the law.” Article 23 “No one shall be subjected to any form of ill-treatment ... Forced or compulsory labour is forbidden.” Article 29 “Everyone has the right that an independent and impartial court established by law decides fairly and within a reasonable time on his or her rights or obligations, or as regards suspicion or accusation of a criminal offence. ...” Article 35 “Respect and legal protection of his or her private and family life, dignity, reputation and honour is guaranteed to everyone.” Article 134 “International agreements in force which have been concluded and ratified in accordance with the Constitution and made public shall be part of the internal legal order of the Republic of Croatia and shall have precedence over the [domestic] statutes. ...” B.     Criminal Code 24.     The relevant part of the Criminal Code ( Kazneni zakon , Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001, 111/2003, 190/2003, 105/2004, 84/2005, 71/2006, 110/2007, 152/2008, 57/2011 and 143/2012) which was in force when the alleged offence was committed reads as follows: Trafficking in human beings and slavery Article 175 “(1)     A person who violates the rules of international law in that he or she by the use of force or of a threat to use force, by means of fraud, by abuse of power or of a position of vulnerability or in any other manner for the purposes of slavery or a similar relationship, forced labour, sexual exploitation, prostitution or illegal human-organ transplant recruits, buys, sells, hands over, transports, transfers, harbours, receives a person or entices or acts as an intermediary in the sale or transfer of a person for such purposes or keeps a person in slavery or a similar relationship, shall be punished by imprisonment for one to ten years. ... (5)     The existence of the criminal offence under paragraph (1) ... does not depend on whether the person concerned consented to force labour, servitude, sexual exploitation, slavery or a similar relationship, or illegal transplant of human organs.” Pandering Article 195 “... (2)     A person who, for profit, organises or arranges for another person to provide sexual services shall be punished by imprisonment for one to three years. (3)     A person who, for profit, forces or entices a person to providing of sexual services by the use of force or the threat of the use of force or by means of deception shall be punished by imprisonment for one to five years. ...” 25.     The relevant provisions of the Criminal Code in force in the Republic of Croatia (official Gazette nos. 125/2011 and 144/2012) read as follows: Slavery Article 106 “A person who violates the rules of international law in that he or she places another in slavery or a similar relationship or keeps another in such a position, or buys, sells, transfers or acts as an intermediary in the sale or transfer of a person or entices another to sell his or her freedom or the freedom of a person whom he or she is caring for shall be punished by imprisonment for one to ten years ...” Trafficking in human beings Article 106 “(1)     A person who by the use of force, of threat, of fraud, of deception, of abduction, of the abuse of power or [abuse] of a difficult situation, or a dependency relationship, or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, or in any other manner recruits, transports, transfers, harbours or receives a person or exchanges or transfers the control over a person for the purpose of exploitation of his or her labour by means of forced labour, servitude, slavery or a similar relationship, or for his or her exploitation for prostitution or other forms of sexual exploitation including pornography, or for the purpose of entering an illegal or forced marriage, or for the removal of organs, or for his or her participation in armed conflicts, or to commit an illegal act shall be punished by imprisonment for one to ten years. ... (7)     The consent of a victim of trafficking in persons is irrelevant for the existence of the criminal offence in question.” Prostitution Article 157 “(1)     A person who, for profit or other gain lures, recruits or entices another person to provide sexual services or organises or arranges for another person to provide sexual services shall be punished by imprisonment for six month to five years. (2)     A person who, for profit, by the use of force or threat, deception, fraud, abuse of power or abuse of a difficult situation or a dependency relationship, forces or entices another person to provide sexual services, or who uses sexual services of such a person for payment and knew of ought to have known of the above-mentioned circumstances shall be punished by imprisonment for one to ten years. ... (3)     it is irrelevant for the existence of the criminal offence whether the person who was lured, recruited, enticed or used for prostitution gave his or her consent or had already practiced it.” C.     Code of Criminal Procedure 26.     The relevant part of the Code of Criminal Procedure ( Zakon o kaznenom postupku , Official Gazette nos. 152/2008, 76/2009, 80/2011, 91/2012 and 143/2012) which was applied in the proceedings against T.M., reads as follows: Article 2 “(1)     Criminal proceedings shall be instituted and conducted only at the request of a competent prosecutor. ... (2)     In respect of criminal offences subject to public prosecution, the competent prosecutor shall act as State Attorney, and in respect of criminal offences that may be prosecuted privately, the competent prosecutor shall be a private prosecutor. (3)     Unless otherwise provided for by law, the State Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person. ...” Article 9 “(1)     The court and other State bodies participating in the criminal proceedings shall examine and establish with equal care the facts against the accused and those in his or her favour ...” Article 16 “(1)     In criminal proceedings a victim and injured party have the rights provided for in this Code. (2)     The police, investigators, State attorney and court shall act with special care with the victim of the criminal offence [concerned]. These authorities shall instruct the victim [of his or her rights] under paragraph 3 of this Article and under Articles 43-46 of this Code and care for the victim’s interests when adopting their decisions concern the prosecution of the accused or when taking actions within the criminal proceedings in which the victim had to participate personally. (3)     A victim suffering serious psycho-physical damage or serious consequences of a criminal offence has the right to free professional aid of a counsellor in accordance with the law. ...” Article 38 “(1)     The basic power and the main duty of a State attorney is prosecution of the perpetrators of criminal offences liable to State prosecution. ...” 1.     Victim Article 43 “(1)     A victim of a criminal offence has: 1.     the right to effective psychological and other professional help and support of a body or organisation providing support to the victims of criminal offences in accordance with the law; 2.     the right to participate in the criminal proceedings as an injured party; ... (3)     When taking the first action in which the victim participates, the court [conducting the proceedings], a State attorney, an investigator and the police shall inform the victim of: 1.     his or her rights under subsections 1 and 2 of this Article and under Article 44 of this Code, 2.     of his or her rights as an injured party.” Article 45 “(1)     A victim of a criminal offence against his or her sexual freedom and morals has, in addition to those under Articles 43 and 44 of this Code, the following rights: 1.     to free consultation with a counsellor before giving his or her evidence; 2.     to be interviewed by an officer of his or her own gender when interviewed by the police; 3.     not to answer a question concerning his or her strictly private life; 4.     to ask to give his or her evidence by means of audio-visual equipment as provided under Article 292(4) of this Code. 5.     to confidentiality of personal data; 6.     to request the exclusion of the public from a hearing. (2)     Before a victim gives his or her evidence for the first time, the court [conducting the proceedings], a State attorney, an investigator and the police shall inform the victim of the criminal offence under paragraph 1 of this Article of his or her rights under this Article.” 2.     Injured party Article 47 “In criminal proceedings an injured party has the right: 1.     to use his or her language and to the services of a translator; ... 3.     to have a representative; 4.     to point out facts and present evidence; 5.     to be present at a hearing where evidence is presented; 6.     to be present at hearings and to participate in the presentation of evidence and to give concluding remarks; 7.     to consult the case file and [examine] objects [serving as evidence]; 8.     to lodge an appeal under the conditions set out in this Code; ... 9.     to be informed of the outcome of the criminal proceedings.” Article 438 “A [trial] panel may decide to temporarily remove the accused from the courtroom when a co-accused or a witness refuses to give his or her evidence in the presence of the accused or if the circumstances show that a co-accused or a witness is not [likely to] tell the truth in the presence of the accused. ...” Article 449 “(1)     A judgment may refer only to a person who was indicted and only to the criminal offence which is the subject of the charges in the [initially lodged] indictment or the indictment amended or extended at a hearing. (2)     The court is not bound by the prosecutor’s legal classification of the offence but the accused cannot be held guilty of a more serious offence than the one he or she has been indicted for. ...” III.     RELEVANT INTERNATIONAL LAW A.     United Nations 1.     Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others 27.     The Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others was adopted on 2 December 1949 and entered into force on 25 July 1951. It was ratified by Croatia 12   October 1992. The relevant part reads as follows: Article 1 “The Parties to the present Convention agree to punish any person who, to gratify the passions of another: (1)     Procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person; (2)     Exploits the prostitution of another person, even with the consent of that person.” 2.     Convention on the Elimination of All Forms of Discrimination Against Women 28.     The Convention on the Elimination of All Forms of Discrimination against Women (“the CEDAW”) was adopted in 1979 by the UN General Assembly and ratified by Croatia on 9 September 1992. The relevant part reads as follows: Article 6 “States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.” 29.     The United Nations Committee on the Elimination of Discrimination against Women, an expert body established in 1982, composed of twenty-three experts on women’s issues from around the world, issues its General Recommendations and country reports. In its General Recommendation no. 19 (11th session, 1992), the Committee recognised that poverty and unemployment force many women and girls into prostitution, and acknowledged the link between the commercial exploitation of women as sexual objects and gender-based violence. General comment no. 14-15 stated: “Poverty and unemployment increase opportunities for trafficking in women ... and force many women, including young girls, into prostitution”. 30.     In its Concluding Observations on Croatia of 28 July 2015 (CEDAW/C/HRV/CO/4-5), the Committee recommended, in particular: Trafficking and exploitation of prostitution “20.     While the Committee notes with appreciation the legislative and policy measures and programmes aimed at protecting women and girls who are victims of trafficking, it is concerned: (a)     That perpetrators of trafficking are often charged with offences of pimping rather than the more serious offence of human trafficking, resulting in a disturbingly low rate of conviction for human trafficking; (b)     That victims of exploitation of prostitution are sometimes prosecuted rather than provided with appropriate support measures, while persons purchasing sex from victims of forced prostitution and/or victims of trafficking are not consistently prosecuted and commensurately punished; (c)     That there are inadequate mechanisms for identifying victims of trafficking in situations of heightened risk; (d)     That there are inadequate systems for the collection of disaggregated data on victims of trafficking, including by sex, age, ethnicity and nationality; (e)     That there are inadequate shelters, and training of personnel therein, for victims of trafficking; (f)     That there are inadequate measures to address the specific vulnerabilities and needs of non-national victims of trafficking. 21.     The Committee recommends that the State party: (a)     Ensure that perpetrators of trafficking receive sentences commensurate with the gravity of the offence; (b)     Consider measures to discourage the demand for prostitution and ensure that women and girls who are victims of trafficking who have been subjected to forced prostitution are referred to adequate support measures rather than being prosecuted by default and that individuals who have purchased sex from victims of trafficking are prosecuted and adequately punished; (c)     Strengthen measures to identify and provide support to women at risk of trafficking; (d)     Establish procedures and systems for the collection of disaggregated data on women who are victims of trafficking; (e)     Increase the human, technical and financial resources allocated to shelters for victims of trafficking to increase both the number of such shelters, in particular in rural areas, and the quality of the care and of legal and psychological counselling available at such shelters; (f)     Strengthen support measures for women, including non-nationals, who wish to leave prostitution; (g)     Analyse the factors leading to the involvement of non-national women in prostitution in order to strengthen measures to address their specific vulnerabilities to trafficking and exploitation of prostitution.” 3.     Palermo Protocol 31.     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 signed by Croatia on 12 December 2000 and ratified on 24 January 2003. The interpretative notes of the negotiation of the Palermo Protocol, however, state that the terms “exploitation of prostitution” and “sexual exploitation” are intentionally not defined, which is therefore without prejudice to how the States address prostitution in their domestic laws. Furthermore, the exploitation of the prostitution of others or other forms of sexual exploitation can qualify as trafficking in human beings. The Palermo Protocol defines forced labour as a form of exploitation. Assistance and protection for victims of trafficking is dealt with in Article 6, which 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. 3.     Each State Party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons ... ... 5.     Each State Party shall endeavour to provide for the physical safety of victims of trafficking in persons while they are within its territory. ...” Article 3(a) “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.” 4.     Declaration on the Elimination of Violence against Women 32.     The Declaration on the Elimination of Violence against Women was adopted at the United Nations General Assembly plenary meeting on 20   December 1993. It recognises forced prostitution as a form of violence against women. In its Article 1, “violence against women” is defined as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life”. Article 2b refers to “physical, sexual and psychological violence occurring within ... trafficking in women and forced prostitution”. B.     Council of Europe Council of Europe Convention on Action against Trafficking in Human Beings 33.     The Convention on Action against Trafficking in Human Beings was adopted on 16 May 2005 and entered into force on 1 February 2008. It was ratified by Croatia on 5 September 2007. The relevant part of the Convention reads as follows: Article 1 – Purposes of the Convention “1     The purposes of this Convention are: a   to prevent and combat trafficking in human beings, while guaranteeing gender equality; b   to protect the human rights of the victims of trafficking, design a comprehensive framework for the protection and assistance of victims and witnesses, while guaranteeing gender equality, as well as to ensure effective investigation and prosecution; c   to promote international cooperation on action against trafficking in human beings. ... ” Article 2 – Scope “This Convention shall apply to all forms of trafficking in human beings, whether national or transnational, whether or not connected with organised crime.” 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; ...” Chapter III – Measures to protect and promote the rights of victims, guaranteeing gender equality Article 10 – Identification of the victims “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 ...” Article 12 – Assistance to victims “1     Each Party shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery. Such assistance shall include at least: ... d     counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand; e     assistance to enable their rights and interests to be presented and considered at appropriate stages of criminal proceedings against offenders; ...” The Explanatory Report of the Convention on Trafficking in Human Beings of the Council of Europe provides a definition in paragraphs 83 and 84 of what is meant by “abuse of a position of vulnerability” as follows: “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.” “84.     A wide range of means therefore has to be contemplated: ... violence by pimps to keep prostitutes under their thumb, taking advantage of an adolescent’s or adult’s vulnerability,