CEDH · CASELAW;CLIN;ENG — 11 octobre 2012

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France - 67724/09 Judgment 11.10.2012 [Section V] Article 4 Article 4-1 Servitude Article 4-2 Forced labour Failure to put in place legislative and administrative framework to combat servitude and forced labour effectively: violation Facts – The applicants were two French sisters born in Burundi. They arrived in France with their three younger sisters in the 1990s through the intermediary of their aunt, who had been appointed their guardian. The three younger sisters were taken in by host families. From the date of their arrival, the applicants were obliged to carry out household and domestic chores for their aunt, her husband and their seven children, and to look after the house. Only the second applicant attended school. The first applicant was occupied all day with housework and looking after her disabled cousin. She reached her majority without making any application to the authorities regarding her status, and apparently in the belief that her residence in France was illegal. Her aunt threatened to send her back to Burundi. She was hospitalised on several occasions under her cousin’s name. In 1999, after being alerted by an association, the authorities opened a preliminary investigation. The diplomatic immunity of the applicants’ uncle, a Unesco employee, was lifted and he was charged with infringing personal dignity, an offence under Articles 225‑14 and 225‑15 of the Criminal Code. Psychiatric reports were obtained which attested to the applicants’ mental suffering accompanied, in the case of the first applicant, by fear and a sense of abandonment, as she equated being sent back to Burundi with a mortal danger and the abandonment of her younger sisters. In 2009 a court of appeal acquitted the aunt and uncle of subjecting vulnerable persons, including at least one minor, to working and living conditions that were incompatible with human dignity and dismissed the applicants’ claims for compensation for the damage arising from that offence. That judgment was upheld following an appeal on points of law. Law – Article 4 (a)     Applicability (i)     Existence of “forced or compulsory labour” : Forced or compulsory labour within the meaning of Article 4 §   2 meant work required under the menace of a penalty and against the will of the person concerned, that is, work for which he or she had not offered themselves voluntarily. However, it was necessary to take into account, among other things, the nature and amount of work. Those circumstances made it possible to distinguish “forced labour” from work which could reasonably be required in respect of mutual family assistance or cohabitation. In the present case, the first applicant had been obliged to perform so much work that, without her help, the couple who used her services would have been required to have recourse to a professional – and thus paid – employee. Further, although the “penalty” could go as far as violence or physical coercion, it could also take a more subtle psychological form, such as denunciation to the police or immigration services of workers without correct papers. The first applicant viewed a return to Burundi as a penalty, and the threat of such a return as the “menace” of execution of that “penalty”. The first applicant had therefore been subjected to “forced or compulsory labour”. In contrast, the situation of the second applicant, who had attended school, was less isolated and had less work to perform, did not correspond to “forced or compulsory labour”. (ii)     Existence of “servitude” : In servitude, what was prohibited was a particularly serious form of denial of freedom. It meant an obligation to provide one’s services that was imposed by the use of coercion such as the obligation for the ‘serf’ to live on another person’s property and the impossibility of altering his or her condition. Servitude was thus a specific form of forced or compulsory labour, or, in other words, “aggravated” forced or compulsory labour. In the instant case, the essential element distinguishing servitude from forced or compulsory labour within the meaning of Article   4 was the victims’ feeling that their condition could not be altered and that there was no potential for change. In this respect, it was enough that that feeling was based on objective elements created or maintained by those responsible. In the instant case, the first applicant had believed that she could not escape from the host couple’s guardianship without the risk of becoming an illegal immigrant, a feeling reinforced by events such as her hospitalisation under a false name. In addition, she had not attended school and had received no vocational training that would have enabled her to hope one day to find paid employment outside the couple’s home. Without any days off or a leisure activities, she had had no opportunities to make external contacts, which would have enabled her to request help. Thus, she had the feeling that her condition could not evolve and was unalterable, especially as it had lasted four years. That situation had begun when she was a minor and had continued into adulthood. The first applicant had thus been kept in a state of servitude. (b)     Merits – Articles 225‑13 and 225‑14 of the Criminal Code as worded at the material time were open to interpretations that could vary widely from one court to another. In addition, since the public prosecutor had not appealed against the court of appeal’s judgment acquitting the perpetrators of the impugned acts, the appeal to the Court of Cassation had concerned only the civil aspect of the case. The first applicant had therefore not been afforded tangible and effective protection. The legislative amendments introduced in 2003 did not invalidate that finding. The State had thus failed to comply with its positive obligation to put in place a legislative and administrative framework to combat servitude and forced labour effectively. Conclusion : violation in respect of the first applicant (unanimously). The Court also held that there had been no violation of Article   4 in respect of the first applicant with regard to the State’s procedural obligation to conduct an effective investigation into cases of servitude and forced labour, and that there had been no violation of Article   4 in respect of the second applicant. Article 41: EUR 30,000 to the first applicant in respect of pecuniary and non-pecuniary damage. (See also Siliadin v. France , no.   73316/01, 26   July 2005, Information Note no.   77 ; and Van der Mussele v.   Belgium , no.   8919/80, 23   November 1983)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes