Legal summary
November 2023
Krachunova v. Bulgaria - 18269/18
Judgment 28.11.2023 [Section III]
Article 4
Positive obligations
Article 4-1
Trafficking in human beings
Domestic courts’ dismissal of compensation claim of trafficking victim against her trafficker in respect of lost earnings from coerced prostitution: violation
Facts – During 2012-2013 the applicant was a sex worker until she was intercepted and interviewed by police. Her pimp (X) was convicted of her human trafficking. While the domestic courts allowed the applicant’s claim against X for compensation in respect of non-pecuniary damage, her claim for compensation for pecuniary damage, based on the estimated earnings from prostitution that X had allegedly taken from her, was dismissed on the basis it concerned money earned in an illegal and immoral manner. All the applicant’s appeals in this regard were dismissed.
Law – Article 4:
(a) Was the applicant a victim of trafficking in human beings for the purposes of Article 4?
The Court found Article 4 to be applicable, in that all three elements of the international definition of trafficking in human beings set out in Articles 3 (a) of the Palermo Protocol and 4 (a) of the Council of Europe Anti-Trafficking Convention – “action”, “means” and “purpose” – in respect of the applicant had been in place. As for “action” and “purpose”, the domestic courts had found that X had recruited the applicant twice and had continually harboured and transported her with a view to exploiting her for sexual acts carried out for payment.
As for “means”, the fact that X had been charged and convicted of the basic offence under the Criminal Code – under which the offence of trafficking was committed even if the “means” element was absent – was not decisive. There was no evidence that X had resorted to violence or threats of violence to make the applicant engage in sex work for his benefit. Referring to the explanatory report to the Anti-Trafficking Convention, the Court noted that international law, reflected clearly the understanding that modern-day trafficking in human beings was sometimes carried out by subtler means, such as deception, psychological pressure, and the abuse of a vulnerability – tactics which should not be seen in isolation. The applicant, a poor and emotionally unstable young woman hailing from a small village, had felt dependent on X who had had her living in his house, retained her identity card and had taken away a substantial portion of her earnings. They apparently had had intimate relations, (traffickers sometimes created a sense of emotional connection and dependence by luring their victims into intimate relationships and posing as their romantic partners). Furthermore, X had deceived her, deprived her of the possibility to move freely or get in touch with her family, and there was evidence that he had abused her emotional and social vulnerability to control her behaviour, more significantly, by threatening to disclose her sex work to her co-villagers. In the circumstances, the fact that the applicant might have, at least initially, consented to engage in sex work for X’s benefit was not decisive. In any event, under the Anti-Trafficking Convention’s definitions, such consent was irrelevant if any of the “means” of trafficking had been used. Nor was it decisive that the applicant could have perhaps broken free from X earlier. Accordingly, the Government’s objection as to incompatibility ratione materiae, which had been joined to the merits, was dismissed.
(b) Is there a positive obligation under Article 4 to enable victims of trafficking in human beings to claim compensation from their traffickers in respect of lost earnings?
The Court was for the first time confronted with the question of whether there was a positive obligation under Article 4 to enable trafficking victims to claim compensation from their traffickers in respect of lost earnings.
The positive obligations arising from Article 4 might extend to the way in which domestic law regulated certain matters. The Court had already held that the fact that it had not been possible (under the relevant domestic rules) to lodge claims for certain types of damages was in breach of Article 2. The fact that the text of Article 4 was silent on whether it laid down a positive obligation to enable victims to sue their traffickers for loss of earnings was not decisive; specific obligations of that nature had been read into other provisions of the Convention that were equally silent on such issues. There were strong arguments in favour of construing Article 4 in much the same manner as Article 2. Together with Articles 2 and 3, Article 4 enshrined one of the basic values of the democratic societies making up the Council of Europe, and trafficking (which threatened the dignity and fundamental freedoms of its victims) was incompatible with those values. It had, moreover, long been accepted that the Contracting States’ duties under Article 4 in relation to trafficking must be guided by the comprehensive approach required under the Palermo Protocol and the Anti-Trafficking Convention, and that only a combination of measures could be effective in that respect. The spectrum of safeguards in domestic law had to also be sufficient to ensure the effective protection of the rights of trafficking victims. As recent Article 4 cases had related to positive obligation compliance, it was all the more important to construe those positive obligations in such a way as to afford effective protection to the rights enshrined therein.
To date, the Court’s case-law relating to after-the-fact responses to trafficking had focused on investigation and punishment. However, such measures could not wipe away the material harm suffered by the victims of trafficking that had already taken place or practically assist their recovery from their experiences. In the recent cases of V.C.L. and A.N. v. the United Kingdom and J. and Others v. Austria the Court had highlighted the need to protect trafficking victims after the fact, from the perspective of their recovery and reintegration into society. From that very perspective, the possibility for victims to seek compensation in respect of lost earnings would constitute one means of ensuring restitutio in integrum for them by making good the full extent of the harm suffered. It would also go a considerable way (by providing them with the financial means to rebuild their lives) towards upholding their dignity, assisting their recovery, and reducing the risks of their falling victim again to traffickers. Moreover, such a possibility would ensure that traffickers were not able to enjoy the fruits of their offences, thus reducing the economic incentives to commit them. It could also reduce the burden on the public resources used to support the recovery of trafficking victims and give victims an additional incentive to come forward and expose trafficking, thereby increasing the odds of holding traffickers accountable and thus preventing future instances of it. Therefore, that possibility had to be considered an essential part of the integrated State response to trafficking required under Article 4. Moreover, redress for the victim should be the overarching consideration from a human-rights perspective. Other measures, notably those in the field of criminal and sometimes immigration law, were likewise integral to the State response to the issue of trafficking but were complementary.
That approach found support in the relevant international instruments, namely the Palermo Protocol and the Anti-Trafficking Convention, as well as in the recommendations and reports of United Nations bodies, the Council of Europe’s Group of Experts on Action against Trafficking in Human Beings (GRETA) and the Parliamentary Assembly of the Council of Europe (PACE). It also transpired from available comparative-law material that in recent years there had been a trend, most prominently in the United States of America and Canada, but also in some Contracting States – Austria, Belgium, Denmark, France, Germany, the Netherlands, Norway and the United Kingdom – towards enabling trafficking victims to recover from their traffickers gains that the latter had realised by exploiting them, while arguably only one Contracting State, apart from Bulgaria specifically barred such claims.
In view of all the foregoing considerations, the Court concluded that Article 4, interpreted in a way rendering its safeguards practical and effective, laid down a positive obligation on the part of the Contracting States to enable the victims of trafficking to claim compensation from their traffickers in respect of lost earnings. That obligation enhanced the protection of the rights already enshrined in that Article in light of present-day realities and brought that protection into line with the increasingly high standard required in that domain and with the changed social context in which that Article now needed to be applied.
(c) Was the dismissal of the applicant’s claim for damages against X in breach of that positive obligation?
The Bulgarian courts, when dismissing the applicant’s claim for compensation from X had referred to the fact that she had obtained the earnings through prostitution contrary to (a) Article 329 § 1 of the Criminal Code and (b) good morals.
With respect to the first ground, no authority had at any point suggested that the applicant’s conduct had met all the constitutive elements of the offence under Article 329 § 1 and she had never been investigated or prosecuted for such an offence. Furthermore, that provision had been based on outdated social attitudes and policy considerations left over from the totalitarian communist regime and had been incompatible with a constitutional framework based on the rule of law and on respect for human rights, leading to the Constitutional Court to declare it unconstitutional. The alleged illegality of the applicant’s earnings could not be accepted as a sufficient ground to dismiss her claim.
With respect to the second ground, concerns based on moral considerations had to be taken into account in such a sensitive domain as prostitution, which was approached differently in different legal systems depending on the respective society’s understanding of it. Human rights had to be the main criterion in designing and implementing policies on prostitution and trafficking. It was difficult to accept that a decision ordering X to return to the applicant the earnings that he had taken away from her would have been considered in Bulgaria as an affront to morality, irrespective of the fact that those earnings had been earned through prostitution. The applicant’s complaint had not related to voluntary sex work, but to exploitation for the purposes of coerced prostitution – which was, as recognised by the Court, incompatible with human dignity. The present case did not thus concern whether contracts for sex work had to be recognised as legally valid in themselves or, more generally, whether the Convention precluded prostitution or some of its aspects from being outlawed. The Court’s analysis was limited to whether the positive obligation could be avoided on public-policy grounds, notably on the basis that the earnings at issue had been obtained immorally. In the light of the significant emphasis placed on the rights of victims of trafficking in international instruments, as well as in the proceedings before the Bulgarian Constitutional Court, and the reasons given by that court, it could not be accepted that a simple reference to the “immoral” character of the applicant’s earnings had constituted sufficient justification for failing to comply with that obligation. Even if there existed sound public-policy reasons to dismiss a tort claim relating to earnings obtained through prostitution, in the instant case such reasons had come up against the countervailing and undoubtedly compelling public policy against trafficking and in favour of protecting its victims, to which not only the Court but also the Bulgarian authorities themselves had attached considerable significance. It appeared that the applicant had not had other ways of seeking compensation or that she could have sought and obtained such compensation through the general scheme for compensating victims of crime.
The Court thus concluded, that the decision to dismiss the applicant’s claim against X in respect of lost earnings could not be seen as striking a fair balance between her rights under Article 4 and the interests of the community, the respondent State’s margin of appreciation notwithstanding.
Conclusion: violation (unanimously).
Art 41: EUR 6,000 in respect of non-pecuniary damage. Claim in respect of pecuniary damage dismissed as the Court was not satisfied that there was a sufficiently direct causal link between the breach of Article 4 and the pecuniary damage allegedly suffered by the applicant – the amount of her claim against X. A reopening of the domestic proceedings and a re-examination of the matter at the national level would in principle constitute an appropriate means of remedying the breach’s pecuniary consequences.
(See also Rantsev v. Cyprus and Russia, 25965/04, 7 January 2010, Legal Summary; J. and Others v. Austria, 58216/12, 17 January 2017, Legal Summary; S.M. v. Croatia [GC], 60561/14, 25 June 2020, Legal Summary; V.C.L. and A.N. v. the United Kingdom, 77587/12 and 74603/12, 16 February 2021, Legal Summary)
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This summary by the Registry does not bind the Court.
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