Information Note on the Court’s case-law 205
March 2017
Chowdury and Others v. Greece - 21884/15
Judgment 30.3.2017 [Section I]
Article 4
Positive obligations
Article 4-1
Trafficking in human beings
Article 4-2
Forced labour
Inadequate response to human-trafficking through exploitation of vulnerability of unauthorised migrant workers: violation
Facts – The applicants are 42 Bangladeshi nationals. With neither work permits nor residence permits for Greece, they were recruited in 2012-13 as seasonal agricultural workers. Having been promised a wage of EUR 22 per day and housed in deplorable conditions, they worked extremely long hours under the supervision of armed foremen.
As strikes had broken out after several months of unpaid wages, the employers responded with threats and recruited new Bangladeshi migrants. On 17 April 2013 one of their guards opened fire on about a hundred workers who were demanding their wages, seriously injuring some of the applicants.
Proceedings were brought against the employers, the guard who had opened fire and a foreman. In addition to a charge of grievous bodily harm, the prosecutor brought the charges of trafficking in human beings (Article 323A of the Criminal Code). One group of applicants (all of whom had been injured) were recognised by the prosecutor’s office as victims of human trafficking and took part in the trial.
In July 2014 the Assize Court imposed prison sentences in respect of grievous bodily harm but dismissed the trafficking charge on the grounds that the applicants had signed up willingly and without losing the freedom of movement enabling them to leave the employer. The public prosecutor at the Court of Cassation refused to lodge an appeal on points of law.
The other group of applicants (those who had not been injured) were not involved in the proceedings before the Assize Court. In May 2013 they had also lodged a complaint, requesting that they too be recognised as victims of trafficking. In August 2014 the prosecutor refused to institute proceedings, on the grounds that the applicants’ delay in coming forward cast doubt on the reality of their presence at the time of the events.
The applicants, who considered that they had been subjected to forced or compulsory labour, alleged before the European Court that the authorities had failed to react.
Law – Article 4 § 2
(a) Applicability – The concept of trafficking was not limited to sexual exploitation. Exploitation through labour was one of the forms of exploitation targeted by the definition of trafficking in human beings set out in Article 4 (a) of the Council of Europe Convention on Action against Trafficking in Human Beings (Anti-Trafficking Convention), which highlighted the intrinsic relationship between forced or compulsory labour and trafficking in human beings. The same idea came through clearly in the article of the Criminal Code that had been applied in this case.
The victim’s prior consent was insufficient to preclude employment being classified as “forced labour”. Where an employer abused his or her power or took advantage of workers’ situation of vulnerability in order to exploit them, the latter were not offering their labour voluntarily. The question of whether an individual offered his or her labour voluntarily was a factual one, which had to be examined in the light of all the relevant circumstances of a case.
In the present case, the applicants had begun working while they were in a vulnerable situation, as illegal immigrants without resources who ran the risk of being arrested, detained and deported. They undoubtedly realised that if they stopped working they would never receive their salary arrears, which were accumulating on a daily basis.
Even supposing that when they were recruited the applicants had offered their labour voluntarily and had believed in all good faith that they would be paid their wages, the conduct of their employers (threats and violence, especially in response to requests for payment of wages) showed that the situation had subsequently changed.
Thus, while the applicants were not in a situation of servitude, their working conditions clearly allowed for the conclusion that their situation amounted to forced labour and human trafficking, as defined by Article 3 (a) of the Additional Protocol to the United Nations Convention against Transnational Organized Crime (Palermo Protocol) and Article 4 of the Anti-Trafficking Convention.
Conclusion: Article 4 applicable (unanimously).
(b) Compliance with obligations – The grounds set out below led the Court to conclude that the respondent State had not fulfilled its positive obligations with regard to human trafficking (to prevent trafficking, protect the victims, carry out an effective investigation and punish those responsible).
The Court drew on the Anti-Trafficking Convention and the manner in which it had been interpreted by the Group of experts on action against trafficking in human beings (GRETA).
(i) Creation of an appropriate legal and regulatory framework – This obligation had essentially been met. In particular, Greece had ratified or signed, well before the events giving rise to the present case, the main international instruments (including the Palermo Protocol of December 2000 and the Anti-Trafficking Convention of 16 May 2005) and had transposed the relevant European Union law into the Criminal Code and the Code of Criminal Procedure, with regard both to the punitive aspect and to the protection of victims.
(ii) Operational measures – The Anti-Trafficking Convention recommended both preventive measures (strengthening coordination at national level between the various bodies responsible for anti-trafficking and discouraging demand, including through border controls) and protection measures (facilitating identification of victims by qualified persons and assisting victims in their physical, psychological and social recovery).
In the present case, this obligation had not been met: although the authorities had long been aware of the local situation (a report by the Ombudsman had drawn attention to the situation as far back as 2008), their reaction had been on an ad hoc basis and no general solution had been provided on the ground.
(iii) Effectiveness of the investigation and judicial proceedings – In cases involving exploitation, the prosecuting and judicial authorities were required to draw – as a matter of urgency and of their own motion, as soon as the situation came to their notice – all the logical consequences from the application of the relevant criminal-law texts, to the extent permitted by their respective powers.
In the present case, the following grounds led to the conclusion that these obligations had not been fulfilled.
(α) With regard to the applicants who had not taken part in the proceedings before the Assize Court – As soon as he had factual information indicating that these applicants had been recruited by the same employers and were working in the same conditions as the group of applicants who participated in the proceedings before the Assize Court, the prosecutor had had a duty to investigate their allegations of human trafficking and forced labour. Yet there was nothing in the decision dismissing the complaint to suggest that the prosecutor had genuinely examined this aspect.
In attaching importance to the fact that these individuals had delayed in reporting the matter to the police, the prosecutor had failed to comply with Article 13 of the Anti-Trafficking Convention, which specifically provided for a “recovery and reflection period” of at least 30 days, so that the person concerned could have the time to escape the influence of the traffickers and take an informed decision on cooperation with the authorities.
It was therefore appropriate to dismiss the objection that this group did not have “victim” status and conclude that there had not been an effective investigation.
(β) With regard to the applicants who had taken part in the proceedings before the Assize Court
Punitive aspect – The defendants charged with “trafficking in human beings” had been acquitted on the basis of a narrow interpretation which seemed to confuse trafficking with servitude. However, the restriction on freedom of movement, which affected not so much the provision of one’s labour as such but rather certain aspects of the victim’s life, was not a condition sine qua non for classifying a situation as forced labour or even human trafficking.
The public prosecutor at the Court of Cassation had subsequently refused, without providing any reasons, to lodge an appeal against the acquittal judgment.
Furthermore, even with regard to the charge of grievous bodily harm, the prison sentence initially imposed had been commuted to a pecuniary sanction of EUR 5 per day of detention.
Compensatory aspect – Article 15 of the Anti-Trafficking Convention required the Contracting States to provide in their domestic legislation for the right of victims to obtain compensation from the persons who had committed the offence and to take measures to set up a compensation fund.
In the present case, however, even with regard to serious bodily harm, the civil compensation fixed by the Assize Court had not exceeded EUR 43 per injured worker.
Conclusion: violation (unanimously).
Article 41: The difficulty in assessing the pecuniary damage sustained as a result of the unpaid wages and the Assize Court’s decision led the Court, ruling on an equitable basis, to award a global sum covering both pecuniary and non-pecuniary damage: EUR 16,000 to each of the applicants who had taken part in the proceedings before the Assize Court and EUR 12,000 to each of the others, in respect of all the damage sustained.
(See the factsheets on Trafficking in Human Beings and Slavery, servitude and forced labour)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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