CEDH · CASELAW;CLIN;ENG — 10 décembre 2024

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Russia - 71671/16 and 40190/18 Judgment 10.12.2024 [Section III] Article 4 Positive obligations Effective investigation Article 4-1 Servitude Trafficking in human beings Article 4-2 Forced labour Failure to protect irregular female migrant workers from trafficking and servitude and to investigate the crimes committed against them: violation Article 14 Discrimination Domestic authorities’ inaction amounting to discrimination towards the applicants as women who were female migrant workers with an irregular immigration status: violation Facts – The five applicants, three Kazakh and two Uzbek nationals, are women who were taken from their home countries and exploited in Russia, in convenience stores in the Golyanovo district of Moscow, between 2002 and 2016 for periods ranging from six months to ten years. Their identity documents were taken away upon their arrival in Moscow and they were forced to perform unpaid hard work, including carrying heavy loads, for abnormally excessive hours, without respite or days off. No employment contracts were given and their status as foreign migrant workers was not regularised. They were confined in the stores under close surveillance in appalling conditions and subjected to the use of violence. In particular, they were subjected to beating and rapes, forced pregnancies (the first four applicants), forced abortion (the third applicant) and removal of children born in captivity (the first and fourth applicants). The applicants eventually managed to escape or were released. There was medical evidence of the use of force against the third, fourth and fifth applicants. The third and fourth applicant had serious health conditions and injuries. The third applicant suffered traumatic head injuries and had multiple healing marks of old injuries on her body. The fourth applicant had suffered traumatic brain injury, fractures of the fingers and other trauma and long-term mental distress which had caused her severe mental suffering. The fifth applicant had sustained head, ear and thoracic cage injuries. Besides the criminal complaints lodged by the applicants themselves with the help of NGOs, the authorities had received repeated information and reports about their situation. In June 2010 the Mission of the International Organization for Migration (IOM) in Moscow transmitted information, received from its partner channels in Kazakhstan, to the head of the Moscow Directorate General of Internal Affairs, about the first two applicants’ and their alleged traffickers’ identities and the location of the store, inviting the police to conduct an inquiry. In July 2010 the Ministry of the Interior of Kazakhstan sent a legal assistance request to the General Prosecutor’s Office of Russia in relation to a criminal investigation concerning offences allegedly committed against the first applicant and her minor sister, the second applicant. In January 2017 the Kazakhstani Ombudsman alerted the Russian Ombudsman to reports by the media and a NGO about the fifth applicant’s unlawful deprivation of liberty, exploitation and ill treatment. In response the domestic authorities conducted preliminary inquiries which resulted in decisions not to open a criminal investigation. This was even the case after an intervention by civil-society volunteers in October 2012 leading to the release of a group of migrant workers, including the fourth applicant, which was widely reported in the media. The applicants complained that the authorities had failed to protect them from trafficking, exploitation and violence by adopting an adequate legislative framework, taking operational measures and conducting an effective criminal investigation. Law – Jurisdiction – As the facts giving rise to the alleged violations of the Convention occurred prior to 16   September 2022, the date on which the Russian Federation ceased to be a party to the Convention, the Court had jurisdiction to examine the application. Article   4: (1) Whether the reports of the applicants’ alleged trafficking for labour exploitation gave rise to the authorities’ positive obligations under Article   4 – During the relevant period Russia was a destination country of labour migration, mostly from the Commonwealth of Independent States, in particular Central Asia, with which there was a visa free border regime. Starting from 2010, when the Russian authorities had been first informed about the situation of the first and second applicants by the IOM and the Ministry of the Interior of Kazakhstan, and subsequently about that of the remaining applicants, there had been grounds for a credible suspicion, and in the case of the fourth applicant prima facie evidence, that the applicants had been victims of trafficking in human beings for labour exploitation, which in turn had triggered the domestic authorities’ positive obligations under Article   4. (2) The characterisation of treatment proscribed by Article   4 – There was ample evidence to conclude that all the constituent elements of the international definition of human trafficking had been present in the applicants’ cases. As to “action”, there had been recruitment in the applicants’ home countries, transportation and “receipt” in the sense of receiving the applicants for the purpose of employment at the Golyanovo stores, which had never been questioned by the investigating authorities, and “harbouring” in the sense of accommodating or holding the applicants at the place of exploitation. As for “means”, there had been deception and abuse of a position of vulnerability on account of the applicants’ gender, economic need and irregular migrant status created by their employers, given the seizure of their IDs and the lack of employment contracts and thus of work permit or residence registration. The presence of “means” was not necessary in the case of the applicant who was a minor when trafficked. Lastly, the “purpose” of the applicants’ exploitation had been present. The applicants, who had been subjected to the use of force and other forms of coercion (rape, reproductive violence, abuse and removal of their children), had worked at the Golyanovo stores without offering themselves for that work voluntarily and had been, at the least, subjected to forced labour within the meaning of Article 4. In addition, the applicants, socially isolated in a foreign country, with insufficient knowledge of Russian, with no access to information about remedies, dispossessed of their IDs and not receiving any remuneration for their work, had been obliged to live on their employers’ property and had had no opportunity to alter their situation, feeling that it had been permanent and unlikely to change. That corresponded to the notion of servitude within the meaning of Article   4. Accordingly, the Court found that the applicants had been victims of cross border trafficking in human beings and servitude. (3) Whether the authorities complied with their positive obligations under Article   4 – (i) The obligation to put in place an appropriate legislative and administrative framework (substantive limb) – Since 2003, trafficking in human beings and the use of slave labour had been criminalised respectively by Articles   127.1 and 127.2 of the Criminal Code. However, those provisions had not been applied in the applicants’ cases. The investigating authorities had repeatedly refused to institute criminal proceedings on the grounds of the lack of the constituent elements of those crimes, referring in particular to the applicants’ supposed freedom of movement and consent to do the work required of them. However, the consent of a victim of trafficking to the intended exploitation was irrelevant where any of the means set out in the international definition of human trafficking had been used, and where a victim of trafficking was a child. Provisions on the role of consent had been absent from Article   127.1 and that lacuna had made it possible to put forward the applicants’ supposed consent as an excuse not to institute criminal proceedings in relation to their allegations of trafficking. In 2019 the Plenum of the Supreme Court of the Russian Federation had introduced the missing provision in its guidance to the lower courts on the application of Article   127.1, but that had had no impact on the authorities’ response to the applicants’ complaints. In addition, the restriction of freedom of movement, while relevant to a situation of servitude, was not a prerequisite for a situation to be characterised as forced labour or human trafficking. Forced labour had not been listed in the note on Article   127.1 on the meaning of “exploitation of a person”, nor had it been penalised as a separate offence by the Criminal Code. While according to the above note, servitude appeared to be embraced by the meaning of “exploitation of a person” as the purpose of trafficking in human beings, the definition of servitude had not been provided, and it had likewise not been penalised as a separate offence. The definition of “use of slave labour” in Article   127.2 required the use of the labour of a person “in respect of whom authority inherent in the right of ownership is exercised”, which corresponded more to the “classic” meaning of slavery and not to that of servitude. The second element of the definition of “use of slave labour”, which required the use of the labour of a person who could not refuse to carry out work (or services) for reasons outside his or her control, did not refer to the much subtler absence of voluntariness, as it was understood in the Court’s case-law on forced labour. Where an employer abused his or her power or took advantage of the vulnerability of his or her workers to exploit them, they did not offer themselves for work voluntarily. The Court therefore considered that the criminal law of the respondent State had not effectively penalised trafficking in human beings, forced labour and servitude. A law providing for measures to combat and prevent human trafficking and to protect and assist its victims had not been enacted in Russia despite the fact that it was party to programmes of cooperation to combat trafficking in human beings between the members of the Commonwealth of Independent States. Indeed, it had been reported that Russia had taken no steps to fulfil its commitments to implement those programmes. The existing legislative framework did not provide for the possibility of regularising residence for (potential) victims of trafficking illegally present in Russia and made the provision of assistance to them punishable by administrative and criminal sanctions. In those circumstances the Court considered that the respondent State had failed to put in place an adequate legislative and administrative framework to prohibit and prevent trafficking, forced labour and servitude and to protect its victims, such as to afford the applicants, one of whom was a minor when trafficked to Russia, practical and effective protection against those crimes. Conclusion : violation (unanimously). (ii) The obligation to take operational measures to protect victims of trafficking (substantive limb) – The IOM’s communication and the Kazakhstani authorities’ request for legal assistance in 2010 had given rise to a credible suspicion that the second applicant had been trafficked to Russia from Kazakhstan in 2007 while a minor and orphan and exploited. However, despite the gravity and urgency of the second applicant’s situation, the authorities had only interviewed her alleged trafficker and had decided not to open a criminal investigation, being satisfied by his denial, supported by statements from several individuals under his control, including those of the second applicant, paying no heed to the suspicious circumstances in which her statements had been made. They had thus failed to protect her from the prohibited treatment which she had had to endure for three more years after the authorities had first been alerted to that risk. Although confronted with prima facie evidence of the fourth applicant’s trafficking for labour exploitation, after her release, the authorities had never identified her as a (potential) victim of trafficking and had not provided her with the relevant assistance and protection. Instead, she had been intimidated and threatened with deportation on account of her irregular migration status. Furthermore, the authorities had not identified as (potential) victims of trafficking and had not provided any protection or assistance either to the first and third applicants when they had travelled to Russia in 2013 in order to participate in the inquiry into their criminal complaints and be interviewed, or to the fifth applicant who had turned to the police to lodge her criminal complaint shortly after her escape. No cooperation and assistance had been provided by the authorities to the civil society representatives whose relentless efforts had brought about or facilitated the applicants’ regaining their liberty and had ensured that the perpetrators’ crimes had been reported to the competent authorities, the applicants had been assisted and their predicament brought to light. Instead, the legitimate efforts to bring the perpetrators to justice and to obtain redress had been regarded by the domestic authorities as improper and potentially criminal and had led to an inquiry into the activities of the Civic Assistance Committee and detailed interrogations of its chair, the fourth applicant and the other women assisted. Conclusion : violation (unanimously). (iii) The obligation to investigate (procedural limb) – Given the prima facie evidence that the fourth applicant had been subjected to cross-border trafficking for labour exploitation, and that the credible suspicion of the remaining applicants being subjected to such treatment, the authorities had been required to act of their own motion, instituting and conducting an investigation capable of leading to the establishment of the facts and of identifying and, if appropriate, punishing those responsible. As the possibility of removing the second applicant from the harmful situation had to be explored, the investigation had to be undertaken as a matter of urgency. However, between 2010 and 2021, the investigation authorities had done nothing more than superfluous and cursory pre-investigation inquiries, a framework within which they could not establish facts and identify those responsible, ending with refusals to institute criminal proceedings that had been so poorly reasoned they had been routinely set aside. That process had been endorsed by the domestic courts. The prosecutor’s office at all levels had remained silent as to why criminal proceedings should not be instituted under Articles   127.1 or 127.2 of the Criminal Code, despite repeated petitions from the applicants’ representatives, supported by civil society, including a petition with more than 15,000 signatories. Statements by the alleged perpetrators denying crimes against the applicants and statements by individuals under their control, potentially themselves victims of trafficking, had been accepted without any scrutiny and relied on to dismiss the applicants’ complaints. Credible allegations of gender-based physical, sexual and reproductive violence, supported by medical and other evidence, had been disregarded, as had been the strong indications of the veracity of the applicants’ complaints concerning the seizure of IDs, the lack of employment contracts and any evidence that salary payments had been made or accommodation had been provided. Basic important steps as obtaining information concerning the disappearance of the fourth applicants’ daughter or carrying out forensic medical examinations of the applicants and their removed children had never been taken. Only the third applicant had been examined by a forensic medical expert, owing to the assistance of an NGO. Consistent allegations of corruption of the local police had likewise been dismissed without a criminal investigation being conducted despite the repeated use by the local police of the statements of potential trafficking victims denying the offences against them while remaining under their traffickers’ control, as an excuse not to investigate such offences. Although these should have alerted the Investigative Committee, it had itself used such statements to dismiss the applicants’ complaints. The likelihood that the traffickers had used the applicants’ vulnerability as females and migrants in order to exploit them had been left without any assessment, in breach of their duty to take all reasonable steps to unmask possible discriminatory motives. The decisions not to open a criminal investigation had been repeatedly justified by the fact that the applicants were foreigners not residing in Russia and could not therefore participate in an investigation. Inter-State legal assistance requests were not used to interview the applicants. At no point had specially trained police officers, investigators, prosecutors and judges been involved in the applicants’ cases. Nor had the investigating authorities obtained information about the proceedings instituted in response to the applicants’ criminal complaints in their home countries and cooperated with the relevant authorities of the other States concerned. The Court accordingly found that there had been no effective criminal investigation into the credible allegations of the applicants’ trafficking, forced labour and servitude and the use of gender-based violence as a tool of coercion, and that the discriminatory attitude towards the applicants as female foreign migrant workers had played a role in that situation. By failing in its duty to carry out an effective investigation, the respondent State had fostered a sense of impunity among the traffickers and precluded the applicants’ recovery from their traumatic experiences. It had also denied the applicants the opportunity to seek compensation in respect of damage suffered by them, including for the withholding of earnings from them by their traffickers. Conclusion : violation (unanimously). Article   14 in conjunction with Article   4: The available research and statistics showed that a disproportionate number of women and girls had been victims of human trafficking, particularly in Eastern Europe and Central Asia. Females in general were more vulnerable than men to exploitation through use of force or threats. Female victims were subjected to physical or other violence at the hands of traffickers at a rate three times higher than males. Another disproportionately affected group was that of migrants, notably immigrants without close family, friends or other support networks, whose irregular migration status made them afraid or reluctant to contact local authorities. Russia’s notable lack of recognition of the rights and interests of trafficking victims, especially foreign labour trafficking victims, including female migrant workers from Central Asia, had regularly been brought to its attention by the international community. The government had not systematically published information and statistics on trafficking cases. While Russia’s poor anti-trafficking efforts had reflected a general situation, inevitably that mostly hit those disproportionately affected by trafficking, labour exploitation and related violence, notably female foreign migrant workers in an irregular situation. The domestic authorities’ inaction in honouring its positive obligations under Article 4 had amounted to repeatedly condoning trafficking, labour exploitation and related gender-based violence and had reflected a discriminatory attitude towards the applicants as women who were foreign workers with an irregular immigration status. The authorities’ general and discriminatory passivity had created a climate that had been conducive to their trafficking and exploitation. Conclusion : violation (unanimously). Article   41: EUR 52,000 each, to the first, the third and the fifth applicants and EUR 78,000 each, to the second and the fourth applicants in respect of non-pecuniary damage. (See also Siliadin v.   France , 73316/01, 26   July 2005, Legal Summary ; S.M. v.   Croatia [GC], 60561/14, 25   June 2020, Legal Summary ; Krachunova v.   Bulgaria , 18269/18, 28   November 2023, Legal Summary ; Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol); Council of Europe Convention on Action against Trafficking in Human Beings )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .