CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 28 novembre 2023

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margin-bottom:0pt } .sB00DFE03 { width:22.87pt; display:inline-block } .s1B7C2278 { width:122.41pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s77C3FB1E { margin-top:0pt; margin-bottom:0pt; text-align:justify; page-break-inside:avoid; font-size:10pt }   THIRD SECTION   CASE OF KRACHUNOVA v. BULGARIA   ( Application no. 18269/18 )   JUDGMENT   Art 4 • Domestic courts’ dismissal of trafficking victim’s compensation claim against her trafficker in respect of lost earnings from coerced prostitution • Art 4 applicable as all three elements of international definition of human trafficking – “action”, “means” and “exploitative purpose” – present in circumstances • “Means” element present notwithstanding lack of violence or threats of violence to make applicant engage in sex work • Modern-day human trafficking sometimes carried out by subtler tactics (deception, psychological pressure, abuse of vulnerability), which could not be seen in isolation Art 4 • Positive obligation to enable victims of trafficking to claim compensation from their trafficker in respect of lost earnings • Art 4 construed in light of its object and purpose, in way that rendered its safeguards practical and effective and in line with international standards • Protection of trafficking victims encompassing their recovery and reintegration into society • Possibility for trafficking victims to seek compensation for lost earnings constituted essential part of State’s response to trafficking required under Art 4 • Human rights had to be main criterion in designing and implementing policies on prostitution and trafficking • Domestic courts’ dismissal of compensation claim based on insufficient grounds • Criminal Code provision on criminalisation of income derived from prostitution based on outdated social attitudes and policy considerations from totalitarian communist regime and incompatible with constitutional framework based on rule of law and human rights • Provision declared unconstitutional by Constitutional Court • Victim’s complaint not related to voluntary sex work but to exploitation for purpose of coerced prostitution • Simple reference to “immoral” character of victim’s earnings insufficient justification for dismissal of claims • Any public-policy reasons for dismissing applicant’s claims came up against countervailing and compelling public policy on combating human trafficking and protecting its victims • Fair balance not struck between victim’s Art 4 rights and interests of community, notwithstanding State’s margin of appreciation Art 41 • Just satisfaction • Award in respect of non-pecuniary damage • Insufficient causal link between breach and alleged pecuniary damage • Reopening of domestic proceedings and re-examination of matter in principle constituting appropriate means of remedying pecuniary consequences of breach   STRASBOURG 28 November 2023   FINAL   28/02/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. TABLE OF CONTENTS INTRODUCTION THE FACTS I.   THE APPLICANT’S PERIOD OF SEX WORK II.   CRIMINAL PROCEEDINGS AGAINST X A.   Pre-trial investigation B.   Original trial and first appeal C.   Retrial and second appeal RELEVANT LEGAL FRAMEWORK I.   BULGARIAN LAW A.   The offence of trafficking in human beings B.   The offence of inciting prostitution C.   The offence of earning income in a prohibited or immoral way 1.   Text of Article 329 § 1 of the 1968 Criminal Code 2.   Case-law under Article 329 § 1 in relation to prostitution 3.   Government plans to have Article 329 § 1 repealed 4.   Constitutional challenge against Article 329 § 1 D.   Forfeiture of the proceeds of an offence upon conviction E.   Tort claims in respect of earnings from an unlawful activity 1.   In civil proceedings 2.   In criminal proceedings F.   Contracts infringing good morals G.   Compensation from the State for the victims of crimes H.   Relevant rules of criminal procedure 1.   Role of the victim in the pre-trial investigation 2.   Role of the private prosecutor in the judicial phase of the proceedings 3.   Role of a civil claimant in the judicial phase of proceedings I.   Reopening of criminal proceedings on the basis of a judgment in which the Court finds a breach of the Convention II.   INTERNATIONAL MATERIAL A.   United Nations 1.   Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children 2.   Model Law against Trafficking in Persons 3.   Relevant resolutions and recommendations 4.   Legislative guide on the Palermo Protocol 5.   Basic principles regarding the right to an effective remedy for victims of trafficking in persons B.   Council of Europe 1.   Convention on Action against Trafficking in Human Beings 2.   Recommendation No. R (2000) 11 3.   Recommendation 1545 (2002) 4.   Resolution 1983 (2014) C.   Association of South-East Asian Nations III.   ELEMENTS OF COMPARATIVE LAW A.   Claims for compensation by trafficking victims against their traffickers in respect of lost earnings or unpaid wages 1.   Member States of the Council of Europe 2.   United States of America (a)   Federal law (b)   State law 3.   Canada B.   Validity and enforcement of sex-work contracts RELEVANT INTERNATIONAL REPORTS THE LAW I.   ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION A.   Admissibility 1.   The parties’ submissions (a)   The Government (b)   The applicant 2.   The Court’s assessment (a)   Compatibility ratione materiae (b)   Exhaustion of domestic remedies (c)   Conclusion on the admissibility of the complaint B.   Merits 1.   The parties’ and third party’s submissions (a)   The applicant (b)   The Government (c)   The third party, GRETA 2.   The Court’s assessment (a)   Was the applicant a victim of trafficking in human beings for the purposes of Article 4 of the Convention? (b)   Is there a positive obligation under Article 4 of the Convention to enable victims of trafficking in human beings to claim compensation from their traffickers in respect of lost earnings? (i)   General principles guiding the Court’s interpretative approach (ii)   Interpretation arising from the object and purpose of Article 4 (iii)   Does that interpretation find support in the relevant international instruments? (iv)   Does that interpretation find support in a common approach or a developing consensus between the Contracting States? (v)   Conclusion (c)   Was the dismissal of the applicant’s claim for damages against X in breach of that positive obligation? (i)   General principles regarding States’ duty to comply with positive obligations (ii)   Application of those principles in the present case II.   APPLICATION OF ARTICLE 41 OF THE CONVENTION A.   Pecuniary damage 1.   The applicant’s claim and the Government’s comments on it 2.   The Court’s assessment B.   Non-pecuniary damage 1.   The applicant’s claim and the Government’s comments on it 2.   The Court’s assessment C.   Costs and expenses 1.   The applicant’s claim and the Government’s comments on it 2.   The Court’s assessment OPERATIVE PROVISIONS In the case of Krachunova v. Bulgaria, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Pere Pastor Vilanova, President ,   Jolien Schukking,   Yonko Grozev,   Darian Pavli,   Ioannis Ktistakis,   Andreas Zünd,   Oddný Mjöll Arnardóttir, judges , and Olga Chernishova, Deputy Section Registrar , Having regard to: the application (no. 18269/18) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Ms Daniela Danailova Krachunova (“the applicant”), on 11 April 2018; the decision to give the Bulgarian Government (“the Government”) notice of the application; the observations submitted by the Government and the observations in reply submitted by the applicant, and the parties’ additional submissions; and the third-party submissions of the Council of Europe’s Group of Experts on Action against Trafficking in Human Beings (GRETA), which was invited to intervene in the case by the Vice-President of the Fourth Section, to which the case had been allocated at the relevant time, Having deliberated in private on 3 and 31 October 2023, Delivers the following judgment, which was adopted on the last ‑ mentioned date: INTRODUCTION 1.     The case concerns mainly two questions: (a) whether Article 4 of the Convention lays down a positive obligation to enable the victims of trafficking in human beings to seek compensation in respect of lost earnings from their traffickers; and (b) whether and in what circumstances such a positive obligation can be avoided in relation to earnings obtained by the victim through prostitution and taken away by the trafficker. THE FACTS 2.     The applicant was born in 1985 and lives in the village of Koshava. She was represented by Ms N. Dobreva, a lawyer practising in Sofia. 3.     The Government were represented by their Agents, Ms I. Nedyalkova and Ms S. Sobadzhieva, of the Ministry of Justice. THE APPLICANT’S PERIOD OF SEX WORK 4 .     Until April 2012 the applicant lived in a village with a population of just below 400 people situated in north-western Bulgaria, with her parents and older sister. After graduating from secondary school, she briefly worked as a seamstress. It appears that her relations with her parents were tense. 5 .     In April 2012, when the applicant was 26 years old, an acquaintance of hers put her in touch with X, a 31-year-old man from Novachene – a village about a 70-kilometre drive north-east of Sofia – whose main occupation at that time was to drive prostitutes to and from their places of work. According to a report dated 5 March 2013 that was drawn up by a police officer in Novachene during the ensuing criminal proceedings against X, he had been associating with pimps. According to information also obtained during those criminal proceedings, in 2003 X (a) had entered into a plea bargain with the prosecuting authorities in relation to a charge of aggravated theft (allegedly committed in 1998), (b) had been arrested in connection with an instance of aggravated theft in December 2011, (c) had paid social security contributions for two months in 2006 and for four months in 2008, (d) in 2012-15 had not declared any income to the tax authorities, (e)   by 2016 owned three cars (an Audi A6, a Volkswagen Golf and a Renault Megane Scenic), and (f) in April 2016 had bought a one-storey house in Novachene. 6 .     Following a row with her parents, the applicant met with X and agreed that she would go and live in his house, where he lived with his de facto wife and four children. According to the subsequent findings of the Bulgarian courts (see paragraphs 20 and 27-28 below), the applicant took the initiative in proposing the move. After a few days, X told the applicant how much money could be earned through sex work on Sofia’s ring road, and offered to drive her there and back every day and let her continue living in his house free of charge. According to the applicant’s subsequent statement to the police (see paragraph 11 below), she agreed “because [she] needed the money and was curious about whether she would be able to earn as much as the other girls”. X bought her clothes suitable for sex work, instructed her on the usual prices charged for different sexual acts and on how she should interact with clients, and told her that he would protect her from problems with clients or the police. It appears that for a brief period the applicant and X had intimate relations; the applicant gave evidence during the course of X’s retrial, indicating that such relations had occurred (see paragraph 23 below). 7 .     By May 2012 the applicant was working every day on Sofia’s ring road. X would drive her there each day at about 3 p.m. (hiding nearby and warning her of any approaching police cars), and then drive her back to his house either at about 9 p.m. or after midnight (at about 1.30 a.m.) – depending on the weather. Police officers patrolling the area briefly arrested the applicant on five occasions – on 15, 29 and 30 May and 16 and 19 June 2012. 8 .     By July 2012 the applicant wished to quit, but, according to her initial statement to the police (see paragraph 11 below), she was afraid of what X’s reaction would be. It is unclear whether he ever threatened her. In that initial police interview, she said that he had not done so, but at X’s retrial (see paragraph 23 below) she stated – in response to a direct question regarding whether she had ever been subjected to violence or threats – that he had threatened that he would go to her village and take her back, and that he had beaten her. Later in July 2012 she ran away with a client, first to Plovdiv and then Burgas, and in late August 2012 went back to her village. She told her family that she was working as a salesperson in a clothing shop; they apparently did not suspect the reality of her situation. 9 .     Two or three days later X, apparently informed of the applicant’s whereabouts by a mutual acquaintance of theirs (see paragraph 5 above), came and, despite her protestations, persuaded her to go back with him to his house. He then convinced her to resume sex work rather than go back to her parents’ home – apparently with the argument that neither he nor his wife had any other sources of income, apart from the welfare payments that his wife was receiving from social services for the children. According to the applicant’s initial statement to the police (see paragraph 11 below), at that time X took away her identity card, telling her that he was doing so in order that she would not run away from him again. However, she also stated that he had not forced or coerced her to engage in sex work, but had simply offered the opportunity to do so, and that she had had no choice in the matter. 10 .     From that point on, until 13 February 2013, the applicant resumed her daily shifts on Sofia’s ring road. Police officers patrolling the area briefly arrested her on seven occasions, on 3 and 12 August, 23 and 27 September, 19   October, 14 November 2012 and 11 February 2013. According to her, throughout that time X would take all her earnings away from her but would buy the things that she needed and gave her pocket money. She did not tell him that she wished to quit because she was afraid of him. On the evening of 13 February 2013, when she was again working on Sofia’s ring road, she again ran away (with a lorry driver). The following morning she called X and told him that she no longer wished to engage in sex work. He threatened her that he would expose her real occupation to the people in her village, and she agreed to go back to him, fearing in particular that her parents would learn that she had been engaging in sex work. 11 .     At about 3 p.m. on 15 February 2013 X dropped the applicant off on Sofia’s ring road. Twenty minutes later two plainclothes police officers passed by in an unmarked police car and approached her. According to a report that one of the officers drew up the same day and the officers’ statements in the ensuing investigation against X, the applicant told them that X was keeping her against her will and was holding her identity card, and that she no longer wished to engage in sex work and needed help. The officers drove the applicant to a police station, where she was interviewed. About an hour later X – after being summoned by the police – came to the station. bringing with him the applicant’s identity card, which he apparently routinely kept with him (the applicant gave evidence to that effect in response to a direct question during X’s retrial – see paragraph 23 below). He explained that the applicant had given him the card so that it would not be stolen by clients. 12 .     On the same day, 15 February 2013, the police took the applicant to a crisis shelter in Sofia run by a foundation. She was later transferred to a crisis shelter in Burgas. In June 2013 she was admitted to a psychiatric hospital for treatment; she was released at the request of her parents, who took her back to their house. CRIMINAL PROCEEDINGS AGAINST X Pre-trial investigation 13 .     On 15 February 2013 the police opened a criminal investigation in relation to X. 14 .     Four days later, on 19 February 2013, the investigator interviewed the applicant in the presence of a judge. The applicant did not have a lawyer. She stated, among other things, that X had been “protecting [her] from the police and clients, in case some of them were drunk or drugged”, and he had for that reason retained her identity card, but that had made her nervous because she had been unable to leave if she felt like it. X had not shouted at her or forced her, because he had known that she would run away if he did that. He had, however, hit her on occasion: for instance, the two had once gone out together with X’s wife and the applicant had complained about the bar they had been in and had asked if they could all go to a disco club instead; X had hit her twice after they had all returned to the house. The applicant also said that she was afraid of X, who had telephoned her after 15 February 2013 to tell her that he would come to get her again, and that she did not wish to talk to him or to continue working for him. 15 .     In March 2013 the investigator charged X with trafficking in human beings, contrary to Article 159a § 1 of the Criminal Code, and with inciting the applicant to engage in prostitution for gain, contrary to Article 155 §§ 1 and   3 of the same Code (see paragraphs 34 and 38 below). 16 .     In April 2013 the investigator proposed to the Sofia district prosecutor’s office that it indict X on those charges, and in May 2013 that office did so. It noted that there were no grounds to seek the application of Article 53 of the Criminal Code, which provides, under certain conditions, for the forfeiture of the proceeds of an offence (see paragraph 52 below). 17 .     During the pre-trial investigation, the applicant had no lawyer and took no part in procedural steps other than her being interviewed (see paragraphs   11 and 14 above). The record of her first interview concludes with a statement by the applicant that she was aware of her rights as a victim (see paragraph 60 below) and that she did not wish to be acquainted with the material in the case file. Original trial and first appeal 18 .     At the outset of X’s trial in the Sofia District Court the applicant lodged an application for leave to join the proceedings as a private prosecutor (see paragraph 62 below) and to lodge claims for damages against X. Her claim for compensation for pecuniary damage, amounting to 16,000 Bulgarian levs (BGN – 8,181 euros (EUR)), was based on the estimated earnings from prostitution that X had allegedly taken away from her. She also sought BGN 8,000 (EUR 4,090) in respect of non-pecuniary damage. In support of her claim, the applicant stated, inter alia , that when X had fetched her back in August 2012, he had threatened to expose her to her co-villagers, which had caused her a great deal of disquiet. She also stated that she had felt powerless to surmount his influence and pressure, and had felt worried about her safety when considering how to disengage from sex work a second time. 19 .     At the first hearing, the Sofia District Court gave the applicant permission to join the proceedings as a private prosecutor (see paragraph 62 below) and to lodge a claim for compensation for non-pecuniary damage against X, but stated that her claim for compensation for pecuniary damage could not be accepted for examination since it concerned money earned through lewd and immoral acts. By law, the court could not award damages in respect of such earnings. Moreover, the alleged loss was not among the elements of the offences of which X stood accused, and thus did not have to be proved in the criminal proceedings against him. In the light of the court’s remarks, the applicant withdrew her claim for compensation for pecuniary damage. 20 .     In June 2014 the Sofia District Court found X guilty as charged. It sentenced him to a suspended term of two years’ imprisonment, imposed on him a fine of BGN 5,000 (EUR 2,556), and ordered him to pay the applicant BGN 2,000 (EUR 1,023) in compensation for non-pecuniary damage ( прис.   от 11.06.2014 г. по н. о. х. д. № 9403/2013 г., СРС ). 21 .     The applicant appealed, arguing that X’s sentence was too lenient and that the award of compensation for non-pecuniary damage was too low. She submitted, inter alia , that the Sofia District Court had failed to take into account the fact that she had gone with X owing to her poor financial situation and that she had not consented to the conditions in which she would engage in prostitution – in particular, that X would take away her earnings and retain her identity card. Those were aggravating circumstances. Another aggravating factor was X’s threat to expose her. 22 .     In October 2014 the Sofia City Court held that the lower court had failed to give proper and sufficiently comprehensive reasons for its judgment as whole – both in relation to the witness evidence and in relation to the elements of the offences of which X stood accused. It was hence necessary to quash its judgment as a whole and refer the case back to it for re-examination rather than consider specifically the points raised by the applicant ( реш.   №   1064 от 28.10.2014 г. по в. н. о. х. д. № 3592/2014 г., СГС ). Retrial and second appeal 23 .     In X’s retrial, the applicant again applied for permission to join the proceedings as a private prosecutor (see paragraph 62 below) and to lodge claims for damages against him. 24 .     She again sought BGN 8,000 (EUR 4,090) in respect of non-pecuniary damage. Her claim was chiefly based on the anguish that she had allegedly felt on account of the impossibility of extricating herself from her situation, and on account of the fear that X might punish her or take revenge on her and that her co-villagers might learn of her having engaged in sex work. She reiterated her assertion that she had felt powerless to resist the influence and pressure brought to bear by X, and had felt worried about her safety when considering how to disengage from sex work a second time (see paragraph   18 above). 25 .     The applicant’s claim for compensation for pecuniary damage amounted to BGN 22,500 (EUR 11,504); according to her lawyer, this was the applicant’s lowest estimate of the sum that she had earned in the course of her nine-month stint of sex work (she contended that she had been earning between BGN 2,500 and BGN 7,500 a month). She asserted that X had been taking away all her earnings and using them to support himself and his family, but that he had sheltered, clothed and fed her, and given her pocket money. In support of her claim, the applicant argued, among other things, that prostitution was not an offence, since it was subject to taxation and had not been expressly criminalised. That meant that a trafficking victim’s earnings from prostitution were lawful and subject to restitution by the trafficker. 26 .     The Sofia District Court again gave the applicant permission to join the proceedings as a private prosecutor (see paragraph 62 below) and accepted for examination both claims for damages. 27 .     In January 2017 the court convicted X of trafficking in human beings under Article 159a § 1 of the Criminal Code, but acquitted him of the additional charge (of inciting the applicant to engage in prostitution for gain) under Article 155 §§ 1 and 3 of the Code, holding that that charge was encompassed by the main one (see paragraphs 34 and 38 below). It sentenced him to three years’ imprisonment; the sentence was suspended but accompanied by two probation measures (enrolment in professional-qualification and community-treatment programmes), and the court also imposed on him a fine of BGN 4,000 (EUR 2,045). It also ordered X to pay the applicant BGN 8,000 (EUR 4,090) in compensation for non-pecuniary damage (the full amount of her claim), but dismissed the applicant’s claim for compensation for pecuniary damage ( прис. от 12.01.2017 г. по н.   о.   х.   д.   № 20274/2014 г., СРС ). 28 .     The court found that X had (a) recruited the applicant twice, in April-May and again in August 2012, (b) harboured her between April and July 2012 and between August 2012 and 15 February 2013, and (c) been transporting her between May and July 2012 and between August 2012 and   15 February 2013 with a view to exploiting her by forcing her to engage in sexual acts. It also found that the applicant had been keeping part of the money that she had received from clients but had been giving part of it to X, who had used that money as the main source of income for his family, and that she had throughout that time been hesitant about whether she should be engaging in prostitution, as this had been causing her discomfort and shame. The court held, inter alia , that the question of whether the applicant had consented to engaging in sex work was irrelevant, in view of the nature of the charge against X (namely, the basic offence set out by Article 159a § 1 of the Criminal Code – see paragraphs 34 and 36 below). Such consent mattered solely for the purpose of setting his sentence. The witness evidence suggested that the applicant had been free to quit had she wished to do so – even if she had been somewhat apprehensive of what X’s reaction would be. 29 .     The court went on to hold that the applicant’s claim for compensation for pecuniary damage could not be allowed, for the following reasons: “Each contract for sexual services made between the [applicant] and the respective client was void as infringing good morals – section 26(1) [of the Obligations and Contracts Act 1950 – see paragraph 57 below]. This being so, the [applicant] has no right to receive the sums [stipulated] under those contracts, and there can be no question of damages, within the meaning of section 45 of [the 1950 Act – see paragraph 53 below], arising in this connection. This claim must therefore be dismissed.” 30.     By contrast, the court found the applicant’s claim for compensation for non-pecuniary damage well-founded to its full extent. 31 .     The applicant appealed against the dismissal of her claim for compensation for pecuniary damage, reiterating her submissions in relation to it (see paragraph 25 above). She also stated that the factors that had facilitated her exploitation by X had included the lack of employment opportunities in her native village, the romantic relations between the two of them at the outset of their acquaintance, and a hormonal disorder from which she had been suffering at the time. In an additional written submission, she further argued that the lower court had not duly substantiated its ruling that prostitution was contrary to good morals, this being a notion requiring a more detailed analysis, given the circumstances of the case. The applicant further argued that the lower court’s ruling that prostitution was immoral had not been sufficiently substantiated by reference to proper criteria, since the conservatism of some judges did not reflect the views of society as a whole. Moreover, given the fact that under Article 53 of the Criminal Code the authorities could confiscate the profits realised by human traffickers (see paragraph 52 below), trafficking victims were entitled to secure the restitution (to themselves) of such profits. Thus, the refusal to award her compensation in respect of lost earnings had also been in breach of the Convention, as construed by the Court. 32 .     In a final judgment of 5 December 2017 ( реш. № 1328 от   05.12.2017г. по в. н. о. х. д. № 3947/2017 г., СГС ), the Sofia City Court upheld the lower court’s judgment. It fully agreed with the lower court’s analysis of the evidence and its findings of fact. Moreover, it agreed with the way in which the lower court had categorised the trafficking offence committed by X. It also noted, however, that X had deceived the applicant and had offered her benefits with a view to inducing her to engage in prostitution, and that the applicant had been deprived of the opportunity to move freely or to get in touch with her family, and had been hidden away in X’s home. The court further held that the lower court had correctly set the amount to be awarded as compensation for non-pecuniary damage, in view of, in particular, the intensity of the coercion to which the applicant had been subjected. It also agreed with the lower court that the applicant’s claim for compensation for pecuniary damage was unfounded: “This court finds that the [lower] court was correct to hold that the compensation for pecuniary damage sought by the [applicant] in relation to the offence should not be awarded. The [applicant] is claiming from [X] earnings obtained through lewd acts. It is beyond doubt that [X] benefited from those sums, but they are not to be returned to the [applicant]. They must instead be forfeited, since Article 53 § 2 (b) of [the Criminal Code – see paragraph 52 below] provides that the proceeds of the offence to which the conviction relates are liable to forfeiture, unless [they are] subject to restitution. In the case at hand, those sums are not to be returned to the [applicant], since they were obtained in an immoral manner that is prohibited by the law, as laid down in Article   329 § 1 of the Criminal Code [see paragraph 40 below].” 33 .     The court did not, however, make a forfeiture order. The Government explained that it had not been open to it to do so, since the lower court had not made such an order either, and its judgment had been appealed against only by the applicant and only in so far as it had concerned the dismissal of her claim for compensation for pecuniary damage (see paragraph 31 above). RELEVANT LEGAL FRAMEWORK BULGARIAN LAW The offence of trafficking in human beings 34 .     Article 159a § 1 was added in 2002 to the 1968 Criminal Code in order to, inter alia , ensure that Bulgaria would fulfil its duties under Article 5 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (“the Palermo Protocol”   – see paragraph 67 below), which it had ratified in 2001. Article   159a § 1 made it an offence to “recruit, transport, harbour or receive persons or groups of persons for the purpose of exploiting them for sexual acts, forced labour or the removal of organs, or with a view to keeping them in servitude, irrespective of their consent”. A September 2013 amendment added begging and the removal of bodily tissue, cells or bodily fluids to the list of purposes featuring in the provision. The offence carries a penalty of two to eight years’ imprisonment, plus a fine ranging from BGN 3,000 to BGN   12,000. 35 .     Under Article 159a § 2, an offence is deemed to be aggravated   – and carries a penalty of three to ten years’ imprisonment, plus a fine ranging from BGN 10,000 to BGN 20,000 – if the act specified under the first paragraph of Article 159a has been committed through, inter alia , (a)   coercion or deception, (b) abduction or the illegal deprivation of liberty, (c) an abuse of a position of vulnerability, or (d) promising, giving or receiving benefits. Under Article 66 § 1 of the Code, only a sentence of up to three years’ imprisonment may be suspended. 36 .     In an interpretative decision given in July 2009 ( тълк. реш. № 2 от   16.07.2009 г. по тълк. д. № 2/2009 г., ВКС, ОСНК ), the Supreme Court of Cassation held, inter alia , that since Article 159a § 1 did not list the means by which a victim could be trafficked, an offence under that provision would be deemed to have been committed each time one of the acts mentioned in it was carried out for one of the purposes specified in that provision. The “means” referred to in the Palermo Protocol were listed as merely aggravating factors in Article 159a § 2. This meant that the ambit of the basic offence created by the Bulgarian legislature was wider than that envisaged in the Palermo Protocol. It also followed that the consent or cooperation of the trafficking victim did not exclude criminal liability for that trafficking. It was irrelevant how that consent had been obtained – freely or otherwise – or even whether the victim had been the active party in the trafficking. Under Bulgarian criminal law, trafficking victims therefore included people who had not been coerced into it through violence or other illegitimate means. The offence under Article 159a § 1 was deemed to have been committed whenever someone enlisted, persuaded or induced a victim to follow him or her – even if that was achieved without resorting to deception, coercion, abduction, the illegal deprivation of the liberty of the victim, abusing a position of vulnerability, or the promising, giving or receiving of benefits. If one of those means had been used, the offence would be deemed to be aggravated, in line with Article 159a § 2. The manner in which the victim’s consent had been obtained thus mattered only for the purpose of determining whether the offence in question was a basic or an aggravated one. 37 .     If the basic offence of trafficking in human beings – which does not require that the “means” of trafficking be identified (see paragraphs 34 and   36 above) – involves trafficking across a State border, it likewise carries a harsher penalty: three to twelve years’ imprisonment, plus a fine ranging from BGN 10,000 to BGN 20,000 (Article 159b § 1). If the aggravated version of the offence – that involving the use of “means” (see paragraphs 35 and 36 above) – is a cross-border one, it carries an even harsher penalty: five to twelve years’ imprisonment, plus a fine ranging from BGN 20,000 to BGN   50,000 (Article 159b § 2). The offence of inciting prostitution 38 .     Under Article 155 § 1 of the 1968 Criminal Code, it is an offence to incite someone to engage in prostitution. If the inciting has been done for gain, the offence shall be deemed to be aggravated (Article 155 § 3). 39 .     In its interpretative decision (referred to in paragraph 36 above), the Supreme Court of Cassation further held that the respective offences under Article 159a § 1 and Article 155 §§ 1 and 3 of the Criminal Code overlapped almost fully, the only difference being that trafficking in human beings was characterised by the lasting nature of the exploitation, whereas inciting someone to engage in prostitution for gain implied more sporadic occurrences. Thus, only in intermittent cases was the offence under Article   155 §§ 1 and 3 not encompassed by that under Article 159a § 1. The offence of earning income in a prohibited or immoral way Text of Article 329 § 1 of the 1968 Criminal Code 40 .     Article 329 § 1 of the 1968 Criminal Code, as originally enacted and as amended in 1975, made it an offence for an adult not prevented by a handicap from working not to engage for a prolonged period in “socially beneficial” work, while at the same time obtaining “non-labour-derived” income in a “prohibited or immoral” manner. The provision appears to have been inspired by the Soviet-law proscription against “social parasitism” ( тунеядство ); the early case-law regarding the application of Article 329 §   1 referred to “parasitic life” and “parasitic elements” (see реш. № 283 от   25.05.1972 г. по н. д. № 210/1972 г., ВС, II н. о. ). 41 .     At the time that Article 329 § 1 was enacted, Article 73 § 3 of the 1947 Constitution, which had been adopted shortly after the establishment of the communist regime in Bulgaria, provided that “work [was] a duty and a matter of honour for each citizen capable of work”, and that “each citizen [was] bound to carry out socially beneficial work and [to] work in accordance with his or her energies and abilities”. In 1971 that provision was superseded by Article 59 § 1 of the 1971 Constitution, which provided that “every citizen capable of work is bound to engage in socially beneficial work in line with his or her abilities and qualifications”. The 1971 Constitution was repealed in July 1991, following the end of the communist regime. Article 48 §§ 1, 3 and   4 of the 1991 Constitution provides that (a) everyone has the right to work, (b) each person may freely choose his or her profession and workplace, and (c) no one may be subjected to forced labour. 42 .     In a 1984 interpretative decision ( тълк. реш. № 29 от 29.11.1984 г. по н. д. № 20/1984 г., ВС, ОСНК ), a plenary meeting of the Criminal Divisions of the former Supreme Court held, among other things, that work in prohibited professions – which, as noted in the decision, at that time included entrepreneurship and private business – was not “socially beneficial” within the meaning of Article 329 § 1 (paragraph 1 of the decision). Paragraph 2 of the decision noted that, under Article 59 of the 1971 Constitution, work was not only a right but also a duty for “each Bulgarian citizen”. Case-law under Article 329 § 1 in relation to prostitution 43 .     Point 1 of the operative provisions of the 1984 interpretative decision mentioned in paragraph 42 above stated that income from prostitution or pimping was “immoral” for the purposes of Article 329 § 1. More recently, in 2010-12, the Supreme Court of Cassation confirmed that prostitution fell under that provision (see реш. № 140 от 29.04.2010 г. по н. д. № 73/2010   г., ВКС, III н. о. ), and held that criminalising it in that way was not contrary to Article 8 of the Convention (see реш. № 231 от 17.05.2012 г. по н. д. №   663/2012 г., ВКС, III н. о. ). 44 .     It appears that between 1990 and the mid-2000s Article 329 § 1 was not resorted to. In more recent years however, the regional courts in Blagoevgrad, Dobrich, Pazardzhik, Plovdiv, Stara Zagora, Varna and Vratsa have also found people guilty of the offence under Article 329 § 1 in relation to income earned through engaging in prostitution (see, among others, реш.   № 293 от 05.10.2010 г. по в. н. а. х. д. № 1441/2010 г., ОС-Варна ; реш. № 312 от 21.10.2010 г. по в. н. а. х. д. № 1450/2010 г., ОС-Варна ; реш. № 321 от 02.11.2010 г. по в. н. а. х. д. № 1448/2010 г., ОС-Варна ; реш. № 292 от 03.11.2010 г. по в.