Published on 31 May 2021
FOURTH SECTION
Application no. 18269/18
W
against Bulgaria
lodged on 11 April 2018
communicated on 11 May 2021
STATEMENT OF FACTS
1. The applicant, W, is a Bulgarian national who was born in 1985. She is represented by Ms N. Dobreva, a lawyer practising in Sofia.
2. The facts of the case, as submitted by the applicant and emerging from the documents submitted by her, may be summarised as follows.The applicant’s period of working as a prostitute
3. The applicant was living in a small village with her parents and sister. After graduating from secondary school, she briefly worked as a seamstress. In April 2012, when she was twenty-six years old, an acquaintance of hers put her in touch with a man (X) from a village near Sofia whose main occupation was to drive prostitutes to their places of work and back. The applicant met with X and agreed to go and stay in his house, where he lived with his wife and four children. According to the ensuing findings of the criminal courts (see paragraphs 12 and 19-20 below), the initiative for that belonged to the applicant. After a few days, X told her how much money could be earned by working as a prostitute on the ring road of Sofia, and offered to drive her there and back every day and allow her to keep on living in his house for free. According to the applicant’s subsequent statement to the police (see paragraph 8 below), she agreed “because [she] needed the money and was curious about whether she would be able to earn as much as the other girls”. X bought her clothes suited for her work, instructed her about the usual prices of various sexual acts and about how she should interact with clients, and told her that he would “protect her from problems with clients or the police”. It appears that for a brief period the applicant and X had intimate relations.
4. By May 2012, the applicant was working every day on Sofia’s ring road. X was driving her there at about 3 p.m., hiding nearby and warning her about approaching police cars, and then driving her back to his house at about 9 p.m. or 1.30 a.m., depending on the weather.
5. After a while the applicant wanted to quit, but was afraid of X’s reaction. It is unclear whether he ever threatened her. In her initial statement to the police (see paragraph 8 below), the applicant said that he had never done so, but in the course of X’s re-trial (see paragraph 15 below), she testified, in response to a direct question, that X had threatened her that he would go to her village and take her back, and that he had hit her. In July 2012 she ran away with a client, and in August 2012 went back to her village. She had told her family that she worked as a salesperson; they apparently did not suspect the reality of her situation.
6. A few days after that X, apparently tipped off about the applicant’s whereabouts by their mutual acquaintance (see paragraph 3 above), came and persuaded her to go back with him. He then convinced her to resume working as a prostitute rather than go back to her parents’ house, with the argument that neither he nor his wife had any other sources of income.
7. From that point on until 13 February 2013 the applicant resumed her daily shifts on Sofia’s ring road. According to her, X was taking away all of her earnings. She did not tell him that she wished to quit because she was afraid of him. In the evening of 13 February 2013 she ran away again with a lorry driver. The next morning she called X and told him that she did not wish to work as a prostitute any more. He threatened that he would expose her real occupation to the people in her village, and she agreed to go back with him.
8. On 15 February 2013 a police patrol passed near the place where the applicant worked. She got into their car and they drove her to a police station and took a statement from her. Then they summoned X, who came and brought the applicant’s identity card, which he was apparently routinely keeping with him (the applicant gave evidence to that effect in response to a direct question in the course of X’s re-trial – see paragraph 15 below).Criminal proceedings against X
9. The police immediately opened criminal proceedings against X. Later in 2013 he was charged with human trafficking, contrary to Article 159a § 1 of the Criminal Code, and with inciting the applicant to engage in prostitution for gain, contrary to Article 155 §§ 1 and 3 of the Code (see paragraphs 24 and 27 below).Original trial and first appeal
10. At the outset of X’s trial in the Sofia District Court the applicant sought permission to join the proceedings as a private prosecutor and to bring claims for damages against him. She claimed 8,000 Bulgarian levs (BGN) (4,090 euros (EUR)) in respect of non-pecuniary damage. Her claim for pecuniary damages, amounting to BGN 16,000 (EUR 8,181), was based on the estimated earnings which X had allegedly withheld from her.
11. The court allowed the applicant to join the proceedings as a private prosecutor and to bring a claim for non-pecuniary damages, but held that her claim for pecuniary damages could not be accepted for examination since it concerned money earned through lewd and immoral acts. By law, it could not award damages with respect to such earnings. Moreover, the alleged loss was not among the elements of the offences of which X stood accused, and did not have to be proved in the criminal case against him.
12. In June 2014 the Sofia District Court found X guilty as charged. It sentenced him to two years’ imprisonment, suspended, plus a fine of BGN 5,000 (EUR 2,556), and ordered him to pay the applicant BGN 2,000 (EUR 1,023) in non-pecuniary damages.
13. The applicant appealed, arguing that X’s sentence was too lenient and that the award of non-pecuniary damages was too low.
14. In October 2014 the Sofia City Court found that the lower court had failed to give proper reasons. It was hence necessary to quash its judgment as a whole and refer the case back for re-examination, rather than address specifically the points raised by the applicant.Re-trial and second appeal
15. In the course of X’s re-trial, the applicant again sought permission to join the proceedings as a private prosecutor and to bring claims for damages against him.
16. She again claimed BGN 8,000 (EUR 4,090) in non-pecuniary damages. Her claim was chiefly based on the anguish which she had allegedly felt on account of the impossibility to escape from her situation, and on account of the fear that X might punish her or take revenge on her, and that her co-villagers might learn about her working as a prostitute.
17. The applicant’s claim for pecuniary damages was for BGN 22,500 (EUR 11,504), which was said to be the lowest estimate of the sum which she had earned during her nine-month stint as a prostitute (she claimed to have been earning between BGN 2,500 and 7,500 a month). She asserted that X had been taking away all of her earnings and had been using them to support himself and his family, but had sheltered, clothed and fed her, and had given her pocket money. In support of that claim the applicant argued, inter alia, that prostitution was not an offence in itself, since it was subject to taxation and since it had not been criminalised in terms, which meant that earnings obtained through prostitution were lawful.
18. The Sofia District Court accepted both claims for examination.
19. In January 2017 it convicted X of human trafficking, contrary to Article 159a § 1 of the Criminal Code, but acquitted him of the additional charge under Article 155 §§ 1 and 3 of the Code, holding that it was encompassed by the main one (see paragraphs 24 and 27 below). It sentenced him to three years’ imprisonment, suspended, plus a fine of BGN 4,000 (EUR 2,045), and ordered him to pay the applicant BGN 8,000 (EUR 4,090) in non-pecuniary damages (the full amount of her claim). However, it dismissed the applicant’s claim for pecuniary damages.
20. The court found that X had recruited the applicant twice, in April and again in August 2012, and had continually harboured and transported her with a view to using her for lewd acts. It held, inter alia, that the question whether the applicant had consented to that was irrelevant, in view of the nature of the charge levelled against X – under Article 159a § 1 of the Code (see paragraphs 24 and 26 below). That mattered solely for the quantum of his punishment. The witness evidence suggested that X had not overtly coerced the applicant and that she had been free to quit, even if she had been somewhat apprehensive about his reaction.
21. The court went on to hold that the applicant’s claim for pecuniary damages could not be allowed since the contracts for sexual services with her clients were all null and void as being contrary to good morals. She had thus had no legal grounds to receive the sums under those contracts, and they could not be seen as a loss for the purposes of tort law. By contrast, her claim for non-pecuniary damages was well-founded to its full extent.
22. The applicant appealed against the dismissal of her claim for pecuniary damages, reiterating her submissions in relation to it (see paragraph 17 above). In her appellate brief, she further argued that the lower court had not properly substantiated its ruling that prostitution was immoral; in her view, it was not. The conservatism of some judges did not reflect the views of society as a whole. Since the authorities could forfeit traffickers’ gains, whether under Article 53 of the Criminal Code (see paragraph 33 below) or under the special proceeds-of-crime legislation, the victims of trafficking were entitled to obtain their restitution.
23. In a final judgment of 5 December 2017, the Sofia City Court upheld the lower court’s judgment. It held, inter alia, that the lower court had fixed correctly the quantum of the award of non-pecuniary damages, in view of, in particular, the intensity of the coercion to which the applicant had been subjected. It went on to agree with the lower court that the applicant’s claim for pecuniary damages was ill-founded. It held that the money which X had obtained from the applicant’s activity as a prostitute was not to be returned to her but was subject to forfeiture under Article 53 § 2 (b) of the Criminal Code (see paragraph 33 below). The money was not to be given back to the applicant because she had earned it in an immoral way, which had moreover been contrary to Article 329 § 1 of the Code (see paragraph 29 below). However, the court made no forfeiture order against X.
RELEVANT LEGAL FRAMEWORKBulgarian LawThe criminal offence of human trafficking
24. Article 159a § 1 of the 1968 Criminal Code was added in 2002 to, inter alia, ensure that Bulgaria would fulfil its obligations under Article 5 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (“the Palermo Protocol” – see paragraph 37 below), which it had ratified in 2001. Article 159a § 1 made it an offence to “recruit, transport, harbour or receive persons or groups of persons for the purpose of using them for lewd acts, forced labour or the removal of organs, or with a view to keeping them in servitude, regardless of their consent”. An amendment in September 2013 added to the list of purposes begging and the removal of bodily tissue, cells or bodily fluids.
25. By Article 159a § 2, the offence is aggravated if the act under the first paragraph has been committed, inter alia, through (a) coercion or deception, (b) abduction or illegal deprivation of liberty, (c) an abuse of a position of vulnerability, or (d) promising, giving or receiving benefits.
26. In an interpretative decision given in 2009 (see тълк. реш. № 2 от 16.07.2009 г. по тълк. д. № 2/2009 г., ВКС, ОСНК), the Supreme Court of Cassation held, inter alia, that since Article 159 § 1 did not spell out the means of carrying out human trafficking, the offence under that provision was complete each time one of the acts mentioned in it was carried out for one of the purposes specified in it. The “means” referred to in the Palermo Protocol were set out merely as aggravating factors in Article 159a § 2, which meant that the ambit of the main offence created by the Bulgarian legislature was wider than that envisaged in the Palermo Protocol. It also followed that the consent or cooperation of the victim of trafficking did not exclude criminal liability for it; it did not matter how that consent was obtained – freely or otherwise – or even whether the victim was the active party. In Bulgarian criminal law, the victims of trafficking thus included also people who had not been coerced into it through violence or other illegitimate means. The offence under Article 159a § 1 was committed whenever someone enlisted, persuaded or induced the victim to follow him or her, even without using deception, coercion, abduction, illegal deprivation of liberty, an abuse of a position of vulnerability, or the promising, giving or receiving of benefits. If one of those means was used, the offence was aggravated, according to Article 159a § 2. The way in which the consent of the victim was obtained thus mattered only for differentiating between the main and the aggravated offence.The criminal offence of inciting prostitution
27. By Article 155 § 1 of the Criminal Code, it is an offence to incite someone to engage in prostitution. If the inciting has been done for gain, the offence is aggravated (Article 155 § 3).
28. In the interpretative decision mentioned in paragraph 26 above, it was further held that the offences under Article 159a § 1 and Article 155 §§ 1 and 3 overlapped almost fully, the only difference being that human trafficking was characterised by the durable character of the exploitation, whereas inciting someone to engage in prostitution for gain envisaged more sporadic occurrences. The offence under Article 155 §§ 1 and 3 was thus not encompassed by that under Article 159a § 1 in intermittent cases only.The criminal offence of earning income in an immoral way
29. Article 329 § 1 of the Criminal Code, as originally enacted in 1968 and amended in 1975, makes it an offence for an adult not prevented from working by a handicap not to engage for a prolonged period of time in “socially beneficial” work, while at the same time obtain “non‑labour‑derived” income in a “prohibited or immoral” way.
30. In an interpretative decision given in 1984 (see тълк. реш. № 29 от 29.11.1984 г. по н. д. № 20/84 г., ВС, ОСНК), the former Supreme Court held, inter alia, that income from prostitution or pimping was “immoral” for the purposes of that provision. More recently, in 2010 and 2012, the Supreme Court of Cassation confirmed that prostitution fell under Article 329 § 1 (see реш. № 140 от 29.04.2010 г. по н. д. № 73/2010 г., ВКС, III н. о.), and held that criminalising it in that way did not run counter to Article 8 of the Convention (see реш. № 231 от 17.05.2012 г. по н. д. № 663/2012 г., ВКС, III н. о.).
31. In recent years, lower courts have also found people guilty of prostitution under Article 329 § 1 (see, for instance, реш. № 57 от 23.02.2012 г. по в. а. н. д. № 1797/2011 г., ОС-Варна). When doing so, some of them dismissed arguments that prostitution did not fall within the ambit of that provision because “companions” were subject to taxation (see реш. № 25 от 10.04.2014 г. по в. а. н. д. № 99/2014 г., ОС-Враца, final), or because it had not been criminalised in terms (see реш. № 362 от 17.11.2011 г. по в. а. н. д. № 1603/2011 г., ОС-Варна; реш. № 31 от 28.03.2014 г. по к. а. н. д. № 71/2014 г., ОС-Добрич; реш. № 80 от 21.03.2016 г. по в. а. н. д. № 380/2016 г., ОС-Пловдив; реш. № 178 от 28.06.2018 г. по в. а. н. д. № 527/2018 г., ОС-Варна; and реш. № 260004 от 13.08.2020 г. по в. н. о. х. д. № 1129/2020 г., ОС‑Стара Загора, all final). On one occasion, however, a regional court voiced doubts that Article 329 § 1 could be unconstitutional (see реш. № 254 от 14.12.2017 г. по в. а. н. д. № 1155/2017 г., ОС-Плевен).
32. In May 2020 the Government adopted a penal-policy concept paper for the period 2020-25 drawn up by the Ministry of Justice (link). That paper stated, inter alia, that, in view of its subject-matter, the offence under Article 329 § 1 was unworkable in practice and had to be reconsidered with a view to being repealed or reformulated (at p. 11 in fine).Forfeiture of the proceeds of an offence on conviction
33. Article 53 § 2 (b) of the Criminal Code provides that on conviction, regardless of the main penalty, the proceeds of the offence are liable to forfeiture, unless subject to restitution.Tort claims with respect to a loss of earnings from an unlawful activity
34. In two decisions dating from 1966 and 1972, the former Supreme Court held that damages could be recovered in tort with respect to a loss of earnings, but only if those earnings would have come from a lawful activity (see реш. № 2313 от 08.11.1966 г. по гр. д. № 1646/1966 г., ВС, I г. о., and реш. № 2538 от 23.10.1972 г. по гр. д. № 1482/1972 г., ВС, I г. о.). More recently, in 2011, the Supreme Court of Cassation came to the same conclusion (see реш. № 799 от 22.06.2011 г. по гр. д. № 1666/2008 г., ВКС, I г. о.).State compensation for the victims of crime
35. By sections 3(3)(1), 13(1) and 14(1)(2) of the Assistance and Financial Compensation of the Victims of Crime Act 2006, the victim of, inter alia, the criminal offence of human trafficking can obtain financial compensation of up to BGN 10,000 (EUR 5,113) in respect of, inter alia, lost earnings.
36. Regulation 20(2) of the Act’s implementing regulations, issued in December 2016, provides that loss of earnings can be proved by means of (a) a sick-leave certificate; (b) a decision by a specialised disability-assessment medical commission; (c) a certificate from the employer about the amount of paid wages; (d) a certificate from the tax authorities about current employment agreements; or (e) a certificate from the social-security authorities about the amount of paid sick-leave indemnities.International law materialsUnited Nations
(a) Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children
37. Article 6 § 6 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (“the Palermo Protocol”) (2237 UNTS 319), which Bulgaria ratified in 2001 and which entered into force in 2003, provides:
“Each State Party shall ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered.”
(b) Model Law against Trafficking in Persons
38. Article 28 § 3 (d) of the Model Law against Trafficking in Persons (link), published by the United Nations Office on Drugs and Crime in 2009 to assist States in implementing the Palermo Protocol, states:
“The aim of an order for compensation shall be to make reparation to the victim for the injury, loss or damage caused by the offender. An order for compensation may include payment for or towards:
...
(d) Lost income and due wages according to national law and regulations regarding wages; ...”Council of Europe
(a) Council of Europe Convention on Action against Trafficking in Human Beings
39. Article 15 § 3 of the Council of Europe Convention on Action against Trafficking in Human Beings (2569 UNTS 33; CETS No. 197), which Bulgaria ratified in 2007 and which entered into force in 2008, provides:
“Each Party shall provide, in its internal law, for the right of victims to compensation from the perpetrators.”
40. Paragraph 197 of the Explanatory Report says:
“Paragraph 3 establishes a right of victims to compensation. The compensation is pecuniary and covers both material injury (such as the cost of medical treatment) and nonmaterial damage (the suffering experienced). For the purposes of this paragraph, victims’ right to compensation consists in a claim against the perpetrators of the trafficking – it is the traffickers who bear the burden of compensating the victims. If, in proceedings against traffickers, the criminal courts are not empowered to determine civil liability towards the victims, it must be possible for the victims to submit their claims to civil courts with jurisdiction in the matter and powers to award damages with interest.”
(b) Recommendation No. R (2000) 11
41. In point 33 of its Recommendation No. R (2000) 11 on action against trafficking in human beings for the purpose of sexual exploitation (link), the Committee of Ministers recommended to Member States to “[e]nable the relevant courts to order offenders to pay compensation to victims.”Relevant international reports
42. In its 2015 report concerning the implementation of the Convention on Action against Trafficking in Human Beings (see paragraph 39 above) by Bulgaria (GRETA(2015)32), the Group of Experts on Action against Trafficking in Human Beings, noted, in paragraph 165, that “[t]here [wa]s no information about any civil claim submitted by a trafficked person before a civil court”.
COMPLAINT
43. The applicant complains that she did not have at her disposal an effective legal avenue to seek from X compensation with respect to the prostitution earnings which he had allegedly taken away from her. She relies on Articles 4 and 13 of the Convention.
QUESTIONS TO THE PARTIES
1. Does Article 4 of the Convention apply? In particular, was the applicant a victim of “human trafficking” or “forced prostitution” for the purposes of that provision (see S.M. v. Croatia [GC], no. 60561/14, §§ 114, 143 (i), (vii) and (viii), 155, 290, 296, 300-01 and 303, 25 June 2020)?
2. If so, were the authorities under a duty under Article 4 of the Convention to enable the applicant to seek from her trafficker compensation for the prostitution earnings which he had allegedly taken away from her?
3. If so, was the dismissal of the applicant’s claim for pecuniary damages against her trafficker in breach of that duty?
4. Did the applicant have at her disposal another legal avenue to seek such compensation from her trafficker or from another source?
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