This week the European Court of Human Rights handed down a landmark judgment on human trafficking in the case of Rantsev v Cyprus & Russia. The case concerned Oxana Rantseva, a Russian who went to Cyprus where she worked as a ‘cabaret artiste’—a title that is widely used to describe prostitutes in Cyprus. When she attempted to leave her ‘employment’, Rantseva was brought to the police by her employer who wanted her extradited back to Russia so that he could employ someone else in her stead. The police—aware of the work she was doing—noted that she was not illegally in Cyprus (as she had a work permit) and instructed her to return with her employer. That night, while Rantseva attempted to escape, she fell from a balcony and died. Following her death, and notwithstanding the suspicious circumstances of it and the Article 2 obligation to carry out an effective investigation in cases of death, the possibility that Rantseva was a victim of human trafficking was never investigated by the Cyprian authorities.The case provided the European Court of Human Rights with one of its first opportunities to tackle the issue of human trafficking head-on. First, and perhaps most significantly, the Court found that the prohibition on slavery, servitude and forced labour in Article 4 of the Convention prohibited human trafficking notwithstanding the fact that trafficking is not expressly mentioned anywhere in the Convention. In paragraphs 281 and 282 the Court held:
The Court considers that trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership. It treats human beings as commodities to be bought and sold and put to forced labour, often for little or no payment, usually in the sex industry but also elsewhere (see paragraphs 101 and 161 above). It implies close surveillance of the activities of victims, whose movements are often circumscribed (see paragraphs 85 and 101 above). It involves the use of violence and threats against victims, who live and work under poor conditions (see paragraphs 85, 87 to 88 and 101 above). It is described by Interights and in the explanatory report accompanying the Anti-Trafficking Convention as the modern form of the old worldwide slave trade (see paragraphs 161 and 266 above). The Cypriot Ombudsman referred to sexual exploitation and trafficking taking place “under a regime of modern slavery” (see paragraph 84 above).
There can be no doubt that trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention. In view of its obligation to interpret the Convention in light of present-day conditions, the Court considers it unnecessary to identify whether the treatment about which the applicant complains constitutes “slavery”, “servitude” or “forced and compulsory labour”. Instead, the Court concludes that trafficking itself, within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention, falls within the scope of Article 4 of the Convention
Very importantly, the Court did not only find that Article 4 covers human trafficking but also held that states have a positive duty to prevent human trafficking and to protect victims. This positive obligation gives rise to an obligation to effectively investigate situations where there is a suspicion of trafficking and to co-operate with the investigations of other states.
288. Like Articles 2 and 3, Article 4 also entails a procedural obligation to investigate situations of potential trafficking. The requirement to investigate does not depend on a complaint from the victim or next-of-kin: once the matter has come to the attention of the authorities they must act of their own motion (see, mutatis mutandis, Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 69, ECHR 2002-II). For an investigation to be effective, it must be independent from those implicated in the events. It must also be capable of leading to the identification and punishment of individuals responsible, an obligation not of result but of means. A requirement of promptness and reasonable expedition is implicit in all cases but where the possibility of removing the individual from the harmful situation is available, the investigation must be undertaken as a matter of urgency. The victim or the next-of-kin must be involved in the procedure to the extent necessary to safeguard their legitimate interests (see, mutatis mutandis, Paul and Audrey Edwards, cited above, §§ 70 to 73).
289. Finally, the Court reiterates that trafficking is a problem which is often not confined to the domestic arena. When a person is trafficked from one State to another, trafficking offences may occur in the State of origin, any State of transit and the State of destination. Relevant evidence and witnesses may be located in all States. Although the Palermo Protocol is silent on the question of jurisdiction, the Anti-Trafficking Convention explicitly requires each member State to establish jurisdiction over any trafficking offence committed in its territory (see paragraph 172 above). Such an approach is, in the Court’s view, only logical in light of the general obligation, outlined above, incumbent on all States under Article 4 of the Convention to investigate alleged trafficking offences. In addition to the obligation to conduct a domestic investigation into events occurring on their own territories, member States are also subject to a duty in cross-border trafficking cases to cooperate effectively with the relevant authorities of other States concerned in the investigation of events which occurred outside their territories. Such a duty is in keeping with the objectives of the member States, as expressed in the preamble to the Palermo Protocol, to adopt a comprehensive international approach to trafficking in the countries of origin, transit and destination (see paragraph 149 above). It is also consistent with international agreements on mutual legal assistance in which the respondent States participate in the present case (see paragraphs 175 to 185 above).
This is analogous to the positive obligations that have developed under Article 2 (right to life), for example, as a means of ensuring effective realisation of Convention rights. Importantly, it also attempts to create a bulwark against the all too often realised situations where cases of potential trafficking are effectively ignored by law enforcement authorities or treated as situations of prostitution in which the people who are actually in need of protection become the investigated and sometimes criminalised parties. The obligation for cross-border co-operation in investigations is clearly important in trafficking, particularly taking into account the fact that there is a significant amount of cross-border human trafficking within the member states of the Council of Europe itself.
