Communicated on 10 June 2014
FIRST SECTION
Application no. 58216/12
J. and others
against Austria
lodged on 4 September 2012
STATEMENT OF FACTS
I. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. Background of the case
The applicants are all Filipino nationals. The first and third applicants were recruited in 2006 and 2009 respectively by an employment agency in Manila to work as maids or au pairs in Dubai, United Arab Emirates. The second applicant travelled to Dubai in December 2008 for the same purpose by the suggestion of the first applicant and not via an agency. Each of the applicants had their passport taken away from them in Dubai.
1. The first applicant
In late 2006 the first applicant contacted an agency in Manila in order to find a job abroad. She signed a contract in which she agreed to work for a family in Dubai for two years, from December 2006 until December 2008. The contract also stipulated that the first applicant would be paid 700 dirhams (approximately 150 euros) per month to work for eight hours each working day. The first applicant is a single mother with one daughter. When she went to Dubai her daughter was eight months old, so she had to leave her behind. In Dubai the applicant was brought to her employers who were two sisters or sisters in-law sharing one very large residence with their families. One of these sisters took possession of the first applicant’s passport.
In the first two years the first applicant was not subjected to physical abuse or direct threats of harm by her employers and she was paid regularly. She had to work from 5.00 am to midnight throughout the initial two-year period. Her duties included looking after her employers’ children, preparing meals, cleaning the house, doing the laundry and numerous other jobs around the house and garden. During the first nine months the first applicant was required to perform this work seven days per week without a single day off and was not allowed to leave the house alone or unsupervised. She was not allowed to have her own telephone and was only allowed to call her family in the Philippines once a month, whereby the costs were deducted from her wages. Further, the first applicant was forbidden from speaking to any of the other workers from the Philippines in their own language and she constantly suffered from hunger, as she was given the food left-over from the family.
After approximately nine months, the applicant faced the first punishments by her employers. She was forced to sleep on the floor when her employers found out that she had been talking to another employee from the Philippines. When the first applicant became ill after sleeping on the cold floor, her employers prevented her from buying medicine or contacting a doctor, instead she had to continue working the same hours.
Towards the end of the first applicant’s two-year contract, her employers informed her that they wished her to stay and offered her better pay, more days off and a telephone of her own. The first applicant finally agreed to return to the Philippines for three months and recruit someone to take over the job. Due to the incentives and an overall improvement of the working condition, the first applicant asked the second applicant to take over her role in Dubai.
While she was in the Philippines, she was threatened that if she did not return to Dubai to work, the second applicant would be subjected to further ill-treatment. The first applicant therefore returned to Dubai in April 2009.
After she returned to Dubai, she was instructed to take a driving test. After she failed her first driving test, she was forced to pay for further lessons and tests out of her monthly salary, with four further driving tests costing 700 dirhams each. While she was driving, on a number of occasions, her employer hit her on the shoulder to force her to speed-up. One of her employers also started to slap or hit her for no or little reason. She also repeatedly threatened to ‘let her husband’ hit the first applicant if she did not follow her orders or made any mistakes.
The first applicant also accompanied the families on their trips, i.e. to Europe or Australia and there was locked in hotel rooms or was closely supervised by her employers.
2. The second applicant
The second applicant was married with three young children. Her husband had no regular work. Because she expected better pay in Dubai, she agreed to work for the same employers as the first applicant. The employers in Dubai arranged a visiting visa for the second applicant under false pretences, claiming that the second applicant was a businesswoman trading in gold. Due to this handling, the second applicant did not contact the agency in Dubai and did not have a written contract with her employers. Her understanding was that she would get 700 dirhams per month which would be paid directly to her family in the Philippines.
In December 2008 the second applicant started to work in Dubai. When the first applicant returned to the Philippines for three months in January 2009, her employers threatened not to pay her family, who were heavily reliant upon her monthly earnings. They told her that if she made any mistakes, they would refuse to return her passport and ordered her to re-pay them the cost of her travel and related expenses. They told her that she would be put in prison if she ran away or went to the authorities in Dubai for help. Once, one of the employers struck her across the shoulder using significant force. The second applicant was also forced to work from around 5.00 a.m. or 6.00 a.m until approximately midnight or 1.00 am the following day.
Between April 2009 and June 2010 the violent and threatening behaviour of the employers increased. The applicant was punched by her employer on one occasion and in another incident her employer aimed a hard slap at her face but stroke her instead across the shoulder.
3. The third applicant
The third applicant’s family was desperate for money to pay for crucial medical treatment for her brother. In 2009 she therefore contacted the employment agency in the Philippines and was offered to work as a maid in Dubai. The third applicant was informed that she would be earning around twice as much as in the Philippines. Upon arrival in Dubai in 2009 the third applicant had to hand over her passport and was not given it back. She was working for a different employer than the first and second applicants, however they got to know each other as the two families met every Friday. The third applicant was also bound by working hours from 6.00 am until midnight. Her employer forced her to clean her car in the sun in unbearable heat and she was prohibited from going to the toilet without letting her employer know. She was only allowed to call her family in the Philippines once a month and only in the presence of her employer. The third applicant did not receive any remuneration for the first three months of her employment at all. Later she only received less than what had been agreed on. Moreover, the third applicant was slapped by her employer. After the third applicant wished to return to the Philippines, she was told by her employer that she had to pay the cost of the flight and the agency fees. Moreover, her employer made it clear to the third applicant that her passport was only going to be returned after she had completed at least nine months of work in Dubai.
B. Events in Austria
In early July 2010 the applicants’ employers travelled to Austria together with the applicants. The applicants all stayed at the same hotel in Austria and had to take care of their employers’ children and had other duties. They were still required to work from approximately 5.00 or 6.00 am until midnight or even later. The applicants slept in the same room along with the three female children who they were collectively looking after. The boys slept in the same rooms as their parents. The third applicant was regularly shouted at by her employer, for example if she failed to get all four children ready early every morning. In addition, their employers woke the first applicant up at around 2.00 am and forced her to prepare and cook food for them. Further, the first applicant was forced to carry the families 20 suitcases alone into the hotel. While the applicants were in Austria, their passports remained with their employers. In the hotel in Vienna in which the applicants were staying, they got acquainted with a Filipino employee of the hotel.
When the families went to a zoo three days after their arrival in Austria, one of their children went missing for some time. The applicants’ employers started screaming at the first and third applicants in a manner which the applicants had not experienced before. One of the employers threatened to beat the third applicant and said that ‘something bad’ would happen to her if the child was not found safe and well. Bearing in mind the previous experiences, this incident was very threatening and humiliating for the applicants and the third applicant had the feeling that the violence towards her was likely to escalate at any time. Therefore, the third applicant believed that something bad was going to happen to her if she remained with the family. Similarly, the first applicant believed that the workers could not live with their conditions of work any longer and did not want to risk waiting to see what happened if they travelled with their employers from Vienna to London, as they were scheduled to do.
The night after this incident the applicants escaped with the help of the Filipino employee of the hotel. Thereupon the applicants reported to the Austrian police. The police officer informed them that their employers had also already reported, alleging, inter alia, that the applicants had stolen money and a mobile phone from them when they fled from the hotel.
The applicants filed criminal charges against their employers with the Austrian police, but on 4 November 2011 the Vienna Public Prosecutor discontinued proceedings under Article 104a (Human Trafficking) of the Austrian Criminal Code. On 14 November 2011 the Public Prosecutor gave a written reasoning for the discontinuation of the proceedings. In the Public Prosecutor’s view the offence was committed abroad and did not affect any Austrian interests within the meaning of Article 64 (4) of the Criminal Code.
On 30 November 2011 the applicants filed an application for the continuation of the investigations with the Vienna Regional Court. They submitted that Austrian interests had been harmed and that they had continued to be exploited and abused in Austria. Moreover, they argued that Austria had committed itself under international law to prosecute and punish certain crimes. In violating this overarching commitment to the prosecution of such offences, Austria would become liable to sanctions under the relevant international law.
On 16 March 2012 the Vienna Regional Court dismissed this application and held that Austria had no jurisdiction for the prosecution of the reported facts of the case as there were no Austrian interests within the meaning of Article 64 (4) of the Criminal Code involved. Furthermore, the court did not see any duty under international law to continue the investigations. The court held that since the applicants had only remained in Austria for three days, the elements of Article 104a of the Criminal Code were not fulfilled as the offence had to be executed in Austria over a longer period of time. In doing so, the courts did not refer to any Austrian practice or case-law.
II. Relevant domestic law and practice
Article 104a of the Austrian Criminal Code provides:
“(1) Any person who recruits, houses or otherwise accommodates, transports or offers or passes on to a third party
1. A minor (under 18 years of age) or
2. An adult using dishonest means ([as defined] under paragraph 2) against this adult
With the deliberate intention of the minor’s or adult’s sexual exploitation, exploitation through organ transplantation or labour exploitation, is to be punished with a prison sentence of up to three years.
(2) Unfair means are defined as deceit regarding the facts, exploitation of authority, of situations of distress, of mental disease or any condition rendering the person defenceless, the intimidation or the granting or accepting of an advantage for surrendering control over that person....”
Article 64 of the Criminal Code provides that offences which were committed abroad could be punishable under Austrian law, inter alia, under these conditions:
“(1) The Austrian law applies irrespective of the law of the country where the crime was committed for the following offences:
...
4. slavery (Section 104), human trafficking (Section 104a), ..., if Austrian interests are engaged by this offence or the offender cannot be extradited.”
According to the Austrian practice, Austrian interests are engaged when either the offender is an Austrian citizen or the offence has a relation to Austria or there is an obligation under international law.
On 9 December 1981 the Austrian Supreme Court decided in 11 Os 161/81 concerning the transit and import of narcotics in Austria, that Austrian interests were in any case engaged if the narcotics were brought to Austria, even though it was only for a short time. Moreover, the Supreme Court referred to a duty under international law to combat drug transits.
III. Relevant international law:
The Council of Europe Convention on Action Against Trafficking in Human Beings (“the Anti-Trafficking Convention”) was adopted by the Committee of Ministers of the Council of Europe on 3 May 2005 and entered into force on 1 February 2008. This Convention was ratified by the Austrian State on 12 October 2006.
Article 10 provides as follows:
“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 or 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;
c The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in human beings” even if this does not involve any of the means set forth in subparagraph (a) of this article;
d “Child” shall mean any person under eighteen years of age;
e “Victim” shall mean any natural person who is subject to trafficking in human beings as defined in this article.
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 and, in appropriate cases, issued with residence permits under the conditions provided for in Article 14 of the present Convention.
2 Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2.
...
Chapter V – Investigation, prosecution and procedural law
Article 27 – Ex parte and ex officio applications
1 Each Party shall ensure that investigations into or prosecution of offences established in accordance with this Convention shall not be dependent upon the report or accusation made by a victim, at least when the offence was committed in whole or in part on its territory.
2 Each Party shall ensure that victims of an offence in the territory of a Party other than the one where they reside may make a complaint before the competent authorities of their State of residence. The competent authority to which the complaint is made, insofar as it does not itself have competence in this respect, shall transmit it without delay to the competent authority of the Party in the territory in which the offence was committed. The complaint shall be dealt with in accordance with the internal law of the Party in which the offence was committed.
3 Each Party shall ensure, by means of legislative or other measures, in accordance with the conditions provided for by its internal law, to any group, foundation, association or non-governmental organisations which aims at fighting trafficking in human beings or protection of human rights, the possibility to assist and/or support the victim with his or her consent during criminal proceedings concerning the offence established in accordance with Article 18 of this Convention.
Article 31 – Jurisdiction
1 Each Party shall adopt such legislative and other measures as may be necessary to establish jurisdiction over any offence established in accordance with this Convention, when the offence is committed:
a in its territory; or
b on board a ship flying the flag of that Party; or
c on board an aircraft registered under the laws of that Party; or
d by one of its nationals or by a stateless person who has his or her habitual residence in its territory, if the offence is punishable under criminal law where it was committed or if the offence is committed outside the territorial jurisdiction of any State;
e against one of its nationals.
2 Each Party may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that it reserves the right not to apply or to apply only in specific cases or conditions the jurisdiction rules laid down in paragraphs 1 (d) and (e) of this article or any part thereof.
3 Each Party shall adopt such measures as may be necessary to establish jurisdiction over the offences referred to in this Convention, in cases where an alleged offender is present in its territory and it does not extradite him/her to another Party, solely on the basis of his/her nationality, after a request for extradition.
4 When more than one Party claims jurisdiction over an alleged offence established in accordance with this Convention, the Parties involved shall, where appropriate, consult with a view to determining the most appropriate jurisdiction for prosecution.
5 Without prejudice to the general norms of international law, this Convention does not exclude any criminal jurisdiction exercised by a Party in accordance with internal law.
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 adopted on 15 November 2000 and came into force on 29 September 2003.It was ratified by Austria on 23 September 2004. The relevant provisions of this Protocol provides as follows:
Article 5
Criminalization
1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct set forth in article 3 of this Protocol, when committed intentionally.
2. Each State Party shall also adopt such legislative and other measures as may be necessary to establish as criminal offences:
(a) Subject to the basic concepts of its legal system, attempting to commit an offence established in accordance with paragraph 1 of this article;
(b) Participating as an accomplice in an offence established in accordance with paragraph 1 of this article; and
(c) Organizing or directing other persons to commit an offence established in accordance with paragraph 1 of this article.
II. Protection of victims of trafficking in persons
Article 6
Assistance to and protection of victims of trafficking in persons
...
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.
...
4. Each State Party shall take into account, in applying the provisions of this article, the age, gender and special needs of victims of trafficking in persons, in particular the special needs of children, including appropriate housing, education and care.
...
COMPLAINTS
The applicants complain under Article 3, Article 4 and Article 8 of the Convention that the Austrian authorities failed to undertake effective and exhaustive investigations and therefore violated their positive obligations.
QUESTIONS TO THE PARTIES
1. Have the applicants been subjected to inhuman or degrading treatment in breach of Article 3 of the Convention?
Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?
2. Have the applicants been subjected to forced labour and/or human trafficking in breach of Article 4 of the Convention (see for the notion of human trafficking Rantsev v. Cyprus and Russia, no. 25965/04, ECHR 2010 (extracts))?
Having regard to the procedural protection from forced labour, was the investigation in the present case by the domestic authorities in breach of Article 4 of the Convention?
3. Has there been an interference with the applicants’ rights to respect for their private life within the meaning of Article 8 § 1 of the Convention?
If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
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