Irregular Migrants and the Prohibition of Slavery, Servitude, Forced Labour & Human Trafficking under Article 4 of the ECHR

On 30 March 2017, the ECtHR delivered the Chowdury and Others v. Greece judgment (currently available only in French), where the Court found a violation of Article 4(2) of the ECHR (the right not to be subjected to forced labour). This judgment is an important addition to the gradually growing body of case law under Article 4 of the ECHR. Against the background of the overall prolific output of the Strasbourg Court, it might come as a surprise that the case law under Article 4 is very limited. In addition to the line of cases where the state demands services, which could amount to forced labour (see, for example Chitos v. Greece), there have only been seven cases in which the Court had to address circumstances where abuses inflicted by non-state actors (i.e. employers) qualify as slavery, servitude, forced labour or human trafficking under Article 4. Chowdury and Others v. Greece is the eighth one. It is, however, the first case where the Court found that exploitation of irregular migrant labour amounts to forced labour. The previous cases (Siliadin v. France and C.N. and V. v. France), where the Court determined that the factual circumstances amounted to forced labour, involved children who provided domestic services.  Chowdury is also the first case where the Court found that the victims were subjected to forced labour, but not to servitude.

Chowdury and Others v. Greece has already received wide media coverage (see the Guardian, New York Times) and has been assessed as constituting an important advancement. After briefly describing the factual circumstances and the findings, in this post I would like to take a more critical approach to that part of the judgment where the Court addresses the definitions of servitude, forced labour and human trafficking in human rights law. Despite the positive outcome, the judgment Chowdury is in some respects lacking in rigor in terms of delineating the definitional boundaries of the above mentioned concepts.

Factual Circumstances

The applicants were 42 Bangladeshi nationals in Greece with undocumented status. They were recruited to work on a strawberry farm in Manolada and were promised wages of 22 Euro for seven hours labour and 3 Euro for each overtime hour. They worked in plastic greenhouses picking strawberries every day from 7 a.m. till 7 p.m. under the supervision of armed guards. They lived in makeshift tents of cardboard boxes and nylon without running water and toilets. The workers were never paid their wages for which they went on strike a couple of times. They continued to work since they were afraid that if they were to leave, they would never be paid. After the employers recruited other migrants, the Bangladeshi nationals again demanded their wages. At this point, one of the armed guards opened fire and seriously injured many of them.

After this incident, the employers and the guards were convicted for grievous bodily harm and unlawful use of firearms (sentences that were subsequently commuted to a minimum financial penalty), but acquitted of the charge of trafficking in human beings. When applying to the ECtHR, the 42 Bangladeshi migrants argued that they were subjected to forced labour and human trafficking and that Greece has failed to fulfill its positive obligation under Article 4 to protect them against these abuses, to conduct an effective investigation, and to punish the perpetrators.

The Findings of the ECtHR

The Court found that the migrant workers’ circumstances fell within the scope of Article 4(2) of the ECHR and thus qualified as human trafficking and forced labour, but not as servitude (for these distinctions see below).  It then went on to examine Greece’s positive obligations under Article 4. The Court examined three types of positive obligations.

First, the obligation to put in place an appropriate legal and regulatory framework was under review. No violation was found in this respect since Greece had criminalized human trafficking at national level and had incorporated the relevant EU law in this area (EU Directive 2011/36) (para. 107-8).

The second type of positive obligation under review in the judgment was the obligation to adopt protective operational measures. The Court emphasized that the authorities were well aware of the situation of the migrant workers in the Manolada region and the abuses to which they were exposed, including the refusals by the employers to pay their wages (para.110-15).  Despite this awareness, the authorities’ response was limited (para. 113). Importantly, the assessment of the positive obligation to protect by the Court was done in light of the positive obligations imposed by the Council of Europe Convention on Action against Trafficking in Human Beings (para.104). More generally, the Chowdury judgment is clear to the effect that regardless of the legal qualification of the circumstances as human trafficking or forced labour, the positive obligations generated by Article 4 of the ECHR must in principle be interpreted in light of the Council of Europe Trafficking Convention (for the interaction between the human rights law and the human trafficking legal frameworks see V. Stoyanova, Human Trafficking and Slavery Reconsidered, (CUP, 2017)).

Finally, the Court evaluated the effectiveness of the investigation conducted at national level. In regard to one group of applicants, the Court found a procedural violation of Article 4(2) since the national authorities did not examine their complaint concerning human trafficking and forced labour (para. 119 – 122). In regard to a second group of applicants, the Court also found a procedural violation of Article 4(2) since although there was investigation, prosecution and trial, it all ended in acquittals (para. 123-7).  The reason for the acquittals was that the national court interpreted the crime of human trafficking in a very narrow sense. The bar for qualifying abuses as human trafficking was set so high by the national court that it required that the migrants be absolutely powerless to defend themselves and be deprived of freedom of movement. The ECtHR observed that restrictions upon freedom of movement cannot be a necessary element for qualifying a situation as forced labour and as human trafficking (para. 123).

Definitional Challenges Raised by Article 4 of the ECHR

What is the contribution of Chowdury and Others v. Greece in terms of resolving the definitional challenges raised by Article 4 of the ECHR? It is worthwhile to remind ourselves that Article 4 contains three concepts, i.e. slavery, servitude and forced labour. With Rantsev v. Cyprus and Russia, the Court has added ‘human trafficking’, as defined in the Palermo Protocol and the CoE Trafficking Convention, to the conceptual apparatus of Article 4 (for a critique of this addition see here). In sum, Article 4 captures four concepts for qualifying abuses and the Court needs to find some sensible way of distinguishing them, and of denoting some distinctiveness to each one of them.

The Definitional Quagmire under Article 4

In Chowdury and Others v. Greece, the Court concluded that the migrant workers were subjected to both human trafficking and forced labour, in this way confirming that in some respects these forms of abuses can occur at the same time or one might happen after the other. More specifically, the judgment says:

[…] exploitation of labour is one of the forms of exploitation in the definition of trafficking in human beings, which highlights the intrinsic relationship between forced and compulsory labour and trafficking in human beings. (para. 83; translation by the author).

Yet, this intrinsic relationship is not one of overlap (V. Stoyanova, Human Trafficking and Slavery Reconsidered, (CUP, 2017) p.292). At no point does the Court explain this intrinsic relationship; rather the judgment seems to suggest that these two forms of abuses overlap. It is also worthwhile to remind the reader that in Rantsev v. Cyprus and Russia the Court conflates human trafficking and slavery by defining the former through the definition of slavery in international law (see para. 281 of Rantsev), which has caused further confusion. Just as confusing, in some paragraphs in the reasoning in Chowdury the Court talks only about human trafficking (see, for example, para. 86, 87, 89) without mentioning forced labour. Even more puzzlingly, in other paragraphs the Court refers not only to human trafficking, but also to the concept of exploitation (para.88 and 93). ‘Exploitation’ is not only left undefined, but as the international law definition of human trafficking suggests (a definition that the Court has endorsed), it is a broader concept than forced labour. No explanation has been offered as to the required threshold for defining exploitation and how it might relate to forced labour and servitude in the context of Article 4, which has left the minimum threshold of severity under Article 4 uncertain. Equally confusing, is para.99 in Chowdury, where the Court refers not to forced labour per se, but only to forced labour as a form of exploitation within the definition of human trafficking. In sum, the ECtHR seems to be still struggling with the conceptual apparatus under Article 4. The source of this confusion is ultimately the insertion of human trafficking within the limits of Article 4, in this way overlooking and not developing with sufficient rigor the concepts that are explicit in the text of the provision (i.e. slavery, servitude and forced labour).

The ‘Disproportionate Burden’ Test

Leaving aside the above described definitional carelessness, a very important contribution of Chowdury and Others v. Greece lies in the affirmation of the ‘disproportionate burden’ test for the purpose of defining abuses as forced labour (para.90-1) and its actual application to the circumstances. This test was initially introduced in Van der Mussele v. Belgium, a case where services were demanded by the state (a lawyer was required to provide pro bono legal representation) and in this sense it was not a case of abuses at inter-personal level. In Van der Mussele, the Court said that relative weight was to be attached to the prior consent to do the work; ultimately, all the circumstances of the case will have to be considered for assessing whether the labour qualified as forced labour and this included an assessment as to whether the applicant was subjected to an ‘excessive and disproportionate burden’.

In Chowdury and Others v. Greece the Court applied this approach. First, it observed that if the migrants had stopped working, they knew that they would never collect their wages. Even if it could be assumed that at the time of hiring, they consented to work, the situation changed as a result of the behavior of their employers (para.97). It is critical that the undocumented status of the migrants, the risk of being arrested and detained to be deported, are highlighted in the judgment (para.95) as important factors denoting their vulnerability, which the employer took advantage of. As a consequence, the Court observed that they had not offered their labour voluntary (para. 96).  Then, the Court assessed the severe exploitative conditions to which the migrants were subjected, which denoted excessiveness. It is unfortunate that the Court did not explicitly clarify in the text of the judgment when it applied the test to the facts, that the burden was disproportionate given the severe forms of exploitation that the migrants were subjected to.

Restriction of Freedom of Movement not a Requirement for Defining Forced Labour

Another important contribution of Chowdury and Others v. Greece is the clarification of the distinction between forced labour and servitude. The Court followed the gradation model built within Article 4 by observing that, in contrast to servitude, the qualification of abuses as forced labour does not require such a high threshold as demonstrating that the victim lived in a state of exclusion from the outside world and was deprived of freedom of movement (para.99).

In sum, against the background of the relative scarcity of judicial engagement at international law level with the right not to be subjected to slavery, servitude, forced labour and human trafficking, Chowdury and Others v. Greece is an important addition, which will help Article 4 of the ECHR to gain further traction by instigating more applications. The Court, however, still needs to introduce more conceptual clarity in its Article 4 judgments. This could happen by not rushing to use the concept of human trafficking, but instead by grappling with the modern meaning of the concepts explicit in the text of Article 4.

[The author intervened in the case by submitting a third-party-intervention on behalf of her law faculty. The intervention contained views as to how the definition of forced labour can be addressed in the context of Article 4 of the ECHR and how it could be distinguished from the separate but related concept of servitude. The intervention also examined the interaction between the positive obligations under Article 4 of the ECHR and the CoE Convention on Action against Trafficking in Human Beings.]