Trafficking in Human Beings and the Positive Obligations for States

Transcription

1 Trafficking in Human Beings and the Positive Obligations for States A look into the Rantsev case and the consequences for the approach of combating trafficking in human beings in the Netherlands Masterthesis by Anneke Hol Tilburg University, Tilburg Law School European and International Public Law Department Supervisors: Dr. mr. Conny Rijken & Drs. Eefje de Volder Tilburg, 18 October 2010

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3 PREFACE When I first got to learn more about trafficking in human beings during a seminar on this topic, I soon knew that I wanted to write my thesis on this. Trafficking in human beings is a very complex and difficult crime, but therefore also very interesting and a challenge to research. During my research I found out that trafficking in human beings sometimes also can be very frustrating. Not only is there a large difference between the policy and implementation of combating trafficking, but it is also often hindered because of political reasons and a lack of recognition towards the seriousness of this crime. I chose the Rantsev case as the starting point for my thesis and researched the outcomes of this case for the situation of trafficking in human beings in the Netherlands. Although some of the measures have been a step forward in combating trafficking, I guessed that the Dutch policy could not be perfect and I wondered whether the Netherlands could actually confirm the view that it is one of the leading countries in the fight against trafficking. Once I decided to write my thesis on trafficking in human beings, I never expected that the topic would still have my interest after seven months of reading, writing and dealing with it. The last half year has not always been easy for me and it sometimes has been a real hurdle. I never could have finished this alone and I would therefore like to thank some people. First, I would like to thank my supervisor, Conny Rijken, for her understanding, but also her critical notes on my thesis and the discussions which kept me focused and led to some new interesting insights. I would also like to thank Machteld Boot of BNRM for giving me the chance to write on this topic and for her critical notes and assistance. Further, I would like to thank my friends who have been a real support during these last months and thanks to them, the six years of studying at Tilburg University and living here has been a great and unforgettable period. Lastly, and most of all, I would like to thank my family: mum and dad, who have been of great support during these six years, especially the last months, by their constant belief and trust in me; my two sisters for giving me a place to go to and by listening and understanding my study adventures; and of course Joep and Ise for taking my mind off when I needed it. Anneke Hol Tilburg, September

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5 TABLE OF CONTENTS PREFACE... 3 TABLE OF CONTENTS... 5 LIST OF ABBREVIATIONS INTRODUCTION RANTSEV AND THE POSITIVE OBLIGATIONS FOR STATES Trafficking in Human Beings: the phenomenon The Council of Europe Convention on Action against Trafficking in Human Beings Obligations for states The European Convention on Human Rights Siliadin v. France Rantsev v. Cyprus and Russia Article 2 - Right to life Article 4 Prohibition of forced labour and slavery Article 5 Right to liberty and security Conclusion POSITIVE OBLIGATION TO PUT IN PLACE AN APPROPRIATE LEGISLATIVE AND ADMINISTRATIVE FRAMEWORK Article 273f of the Dutch Criminal Code The Dutch anti-trafficking legislation in practice Dutch anti-trafficking measures The National Rapporteur and Task Force Aanwijzing Mensenhandel Information campaigns Regulation of the sex industry Current bottlenecks Measures to tackle the bottlenecks Conclusion

6 4. POSITIVE OBLIGATION TO TAKE PROTECTIVE MEASURES Physical safety of victims The B9 regulation Adequate assistance to trafficking victims Policies & Programs Training Training to prevent and prosecute Training to protect Practical tools Additional training Conclusion PROCEDURAL OBLIGATION TO INVESTIGATE TRAFFICKING The importance of international cooperation International cooperation by the Netherlands Koolvis Bilateral agreements and other forms of cooperation Bottlenecks for the Netherlands Conclusion CONCLUSION & RECOMMENDATIONS LITERATURE I Books II Articles in books III Articles IV Reports V Legislation VI Case law VII Other Documents VIII Newspapers IX Websites

7 LIST OF ABBREVIATIONS ACVZ AI Ama APV BLinN BNRM CEDAW COA CoMensha COSPOL DNR ECHR EMM EU HRC IND JIT KLPD KMar KRO LEM LP NAPTIP OM RIEC SAT SIOD SP Adviescommissie voor Vreemdelingenzaken [Advisory Committee on Migration Affairs] Arbeidsinspectie [The Labour Inspectorate] Alleenstaande minderjarige asielzoeker [Under accompanied underage asylum seeker] Algemene Plaatselijke Verordening [General Bye-Law] Bonded Labour in the Netherlands Bureau Nationaal Rapporteur Mensenhandel [Bureau of the National Rapporteur on Trafficking in Human Beings] Convention on the Elimination of All Forms of Discrimination against Women Centraal Orgaan opvang Asielzoekers [Central Agency for the Reception of Asylum Seekers] Coördinatiecentrum Mensenhandel [Coordination Centre for Trafficking in Human Beings] Comprehensive Operational Strategic Planning for the Police Dienst Nationale Recherche [National Criminal Investigation Department] European Convention on Human Rights Expertisecentrum Mensenhandel en Mensensmokkel [Expertise Centre for Human Trafficking and Smuggling] European Union Human Rights Council Immigratie- en Naturalisatiedienst [Immigration and Naturalisation Service] Joint Investigation Team Korps Landelijke Politie Diensten [National Police Services] Koninklijke Marechaussee [Military Police] Katholieke Radio Omroep [Catholic Radio Broadcasting] Landelijke Expertgroep Mensenhandel [National Expert group on Trafficking in Human Beings] Landelijk Parket [National Prosecutor s Office] National Agency for the Prohibition of Traffic in Persons and Other Related Matters Openbaar Ministerie [Public Prosecution Service] Regionale Informatie- en Expertise Centra [Regional Information and Expertise Centres] Snel Actie Team [ Quick Action Team ] Sociale Inlichtingen- en Opsoringsdienst [Social Intelligence and Investigation Service] Socialistische Partij [Socialist Party] 7

8 SSR SZW UN UNTOC VNG WODC Studiecentrum Rechtspleging [Judiciary Study centre] Ministerie van Sociale Zaken en Werkgelegenheid [Ministry of Social Affairs and Employment] United Nations United Nations Convention against Transnational Organized Crimes Vereniging van Nederlandse Gemeenten [Association of Netherlands Municipalities] Wetenschappelijk Onderzoek- en Documentatiecentrum [Research and Documentation Centre] 8

9 1. INTRODUCTION Trafficking in human beings is a gross human rights violation. The crime of trafficking has expanded enormously the last years and it is still causing new victims every day. Therefore, combating trafficking in human beings is an important point on the international agenda. Internationally, states have agreed that trafficking in human beings is a serious human rights violation and that it needs to be fought. After the establishment of the international human rights framework after the Second World War, it followed that human rights poses certain obligations on states. Apart from the negative obligations that states have to refrain from violating the rights of the individual, it was agreed that states also have positive obligations in this respect. States sometimes need to take action to guarantee the human rights of its citizens. The extent of the positive obligations of states with regard to international human rights has been elaborated in many judgments. Also with regard to trafficking in human beings it was internationally made clear that states have certain obligations, but the extent of the positive obligations with regard to trafficking in human beings has been unclear for a long time. In European context, the European Court of Human Rights (hereafter: the Court) decided on the positive obligations with regard to trafficking for the first time in 2005 in the case of Siliadin v. France. 1 In January 2010 the Court laid down its judgment in the second landmark case with regard to trafficking in human beings, in the case of Rantsev v. Cyprus and Russia. 2 In this case the Court decided that trafficking in human beings falls within the scope of Article 4 of the European Convention on Human Rights (ECHR) and further elaborated the positive obligations for states rising under Article 4 ECHR. Naturally, this judgment also has consequences for the Netherlands, being a member of the Council of Europe and thus party to the ECHR. The judgment of the Court therefore asks for an examination on how the Netherlands are dealing with trafficking in human beings and what the newly formulated positive obligations mean for the Dutch anti-trafficking policy. The Netherlands are considered to be a country with a welldeveloped anti-trafficking policy and since the Court has given rather specific obligations, it is interesting to look into the Dutch approach of combating trafficking and what the judgment of the Court means for this approach. This leads to the formulation of the following research question: How do the Netherlands comply with the required positive obligations deriving from Article 4 ECHR as decided in the Rantsev judgment? 1 App no 73316/01 ECHR 26 July App no 25965/04 ECHR 7 January

10 My research is aiming to find out if and how the Dutch approach of combating trafficking meets the newly formed obligations by the Court and will mainly focus on the effects, and especially the problems that arise, when the current Dutch rules and procedures on trafficking are applied. Further, my research is aiming to find out if the Dutch approach of combating trafficking is effective by looking at the advantages and disadvantages of the Dutch anti-trafficking policy and if there is a need for changes or improvements to meet the newly raised positive obligations under the ECHR. In order to find an answer to the research question I will start with giving a short introduction on trafficking in human beings in chapter 2. In this light, two of the most important international instruments will be discussed shortly and will explain why trafficking in human beings is protected by the ECHR in spite of the fact that it does not contain a provision explicitly addressing trafficking in human beings. Further, I will shortly discuss the first landmark case of the Court, Siliadin v. France, and will than give an in-depth description of the Rantsev case and the Court s assessment with regard to the alleged violations of Articles 2, 4 and 5 ECHR. Since the considerations of the Court with regard to Article 4 are most ground breaking and do not only oblige Cyprus and Russia to take action, but also other member states, I will discuss the three positive obligations rising under Article 4 ECHR for the situation in the Netherlands in the following chapters. I will focus on questions like how trafficking in human beings is prohibited and punished in the Dutch law; what victim protection programs the Netherlands have and how law enforcement officials are trained; and whether and how the Netherlands attaches value to international cooperation. In chapter 3 I will discuss the first positive obligation to put in place an appropriate legislative and administrative framework. Therefore, I will first have a look at the Dutch Criminal Code in which trafficking in human beings is prohibited and punished. I will also discuss some important anti-trafficking measures of the Netherlands in the form of policies and programs, in order to decide if the Netherlands are providing an effective protection against trafficking. In light of the first positive obligation, the Court also requires states to regulate businesses used as a cover for human trafficking. Therefore I will look at the regulation of the sex industry within the Netherlands. Since the Netherlands is one of the few countries where the ban on brothels was lifted it is interesting to look how these businesses are regulated, ten years after the ban was lifted. I will discuss the measures of the Dutch government in this respect and the current bottlenecks. In chapter 4 I will discuss the second positive obligation to take protective measures. The obligation to take protective measures was divided into three separate obligations. The Court is of the opinion that states are required to provide for the physical safety of victims; to establish comprehensive policies and programs to prevent and combat trafficking and to provide relevant training for law enforcement and immigration officials. I will discuss these three requirements separately. To see how the Netherlands are providing safety to trafficking victims, I will mainly focus on the B9 regulation of the Dutch immigration policy and discuss whether this policy, and other measures to assist victims, provides adequate assistance to trafficking victims. 10

11 Since the policies and programmes of the Netherlands to prevent trafficking will already be discussed in chapter 3, I will only shortly address this obligation in this chapter. Lastly, I will discuss how the Netherlands currently are providing training for law enforcement officials. I would like to find out how officials are trained in order to make them more specialists in trafficking and find out how and if training affects the approach towards trafficking. I will hereby focus on how trafficking in human beings currently is being handled by the Dutch police. In chapter 5 I will discuss the last and third procedural obligation to investigate trafficking. Just like the Court, I will focus on the importance of international cooperation in cross-border trafficking cases. International cooperation is becoming more important in the fight against trafficking and I will discuss the attitude of the Netherlands towards international cooperation, paying special attention to the Koolvis case. Finally, I will end this thesis with my conclusions and recommendations and final observations in the concluding chapter 6. Literature and desk studies have been the main methods I have used for answering the research question. Main source for my thesis has been the seventh national report of the Dutch National Rapporteur which has provided me a lot of valuable information on the current situation of trafficking in the Netherlands. Besides, I have used policy documents and other reports on the situation of trafficking in the Netherlands which have gained me a lot of insights on the situation of trafficking in human beings in the Netherlands. Although trafficking occurs in all kinds of sectors and industries and labour exploitation and the removal of organs are expanding enormously, this thesis will mainly focus on trafficking for the purpose of sexual exploitation. 11

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13 2. RANTSEV AND THE POSITIVE OBLIGATIONS FOR STATES 2.1 Trafficking in Human Beings: the phenomenon Trafficking in human beings is a worldwide problem. The crime is expanding enormously and the number of people who become a victim of trafficking is growing every day. Combating trafficking in human beings has been of high priority on the international human rights agenda for quite some years now. Conventions have been set up to address the problem of trafficking in human beings and agreements between states have been made. For years, trafficking has been open for many interpretations. It has been applied and interpreted differently by states and (non-) governmental organisations. In 2000, states for the first time agreed on an internationally binding definition of trafficking in human beings to narrow down this room for interpretation, which was laid down in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons 1 (hereafter: the Palermo Protocol). The Palermo Protocol defines trafficking as: 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. 2 Trafficking of human beings is a modern form of slavery with exploitation as the core element. Exploitation is defined as including 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 of organs. 3 This definition makes it clear that exploitation not only includes prostitution or other forms of sexual exploitation. Since trafficking in human beings is not only a crime, but also a gross violation of human rights, victim protection is an important element of combating trafficking in human beings. Human rights law in itself how- 1 Protocol to Prevent, Suppress and Punish Trafficking in Person, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (UNTOC), GA Resolution 55/25, Palermo, 15 November The Palermo Protocol is the founding document for international cooperation to combat trafficking and the first international document addressing all aspects of trafficking including the status of victims. The general purposes are to prevent and combat trafficking in human beings, to protect and assist victims and to promote cooperation among state parties (Article 2). 2 Article 3(a) Palermo Protocol. 3 Article 3(b) Palermo Protocol. 13

14 ever does not contain a comprehensive prohibition against trafficking and has not been very helpful to protect victims of trafficking. 4 Whereas the prosecution of traffickers still is an important goal of the fight against trafficking, the focus of the fight against trafficking is moving towards the protection of victims, the so-called human rights based approach. This approach can also be found in the latest international instruments addressing trafficking in human beings The Council of Europe Convention on Action against Trafficking in Human Beings One of the Council of Europe s primary focuses is the safeguard and protection of human rights. This focus is also given priority in the Council of Europe Convention on Action against Trafficking in Human beings 5 (hereafter: the Anti-Trafficking Convention) which entered into force on 1 February The Palermo Protocol has been the starting point for this European instrument to combat trafficking 6, but its main added value compared to other international anti-trafficking instruments is its explicit human rights perspective and focus on victim protection. 7 The Anti-Trafficking Convention reflects a multidisciplinary approach in combating trafficking in human beings effectively and this multidisciplinary approach must also be basic to any national action on trafficking in human beings. 8 It further recognises the interaction between the protection of trafficking victims and the prosecution of their traffickers and that these two elements are closely related to each other. 9 On European level, this document has been groundbreaking because of its human rights based approach and focus on victim protection. Besides the call to further criminalize trafficking, the Anti-Trafficking Convention also requires State Parties to take certain measures to assist victims. 10 The Anti-Trafficking Convention has been a step forward in the fight against trafficking, but it has been said that it leaves too much discretion to states. 11 Besides, it also has not been adopted yet by all states Gallagher 2008, pp CETS No. 197, Warsaw, 16 May The definition of trafficking in Article 4(a) of the Anti-Trafficking Convention is copied from the definition of Article 3(a) Palermo Protocol. The purposes of the Anti-Trafficking Convention, as mentioned in Article 1, are also to prevent and combat trafficking, to protect the human rights of the victims and to promote international cooperation on action against trafficking. 7 Anti-Trafficking Convention, Explanatory Report, para 46: (...) paragraph 5 of the Preamble states that the respect for the rights and protection of victims ( ) must be the paramount objectives. 8 Anti-Trafficking Convention, Explanatory Report Commentary on the Provisions of the Convention, para Anti-Trafficking Convention, Explanatory Report, para Articles Anti-Trafficking Convention. 11 Raffaelli 2009, p The Anti-Trafficking Convention is ratified by 30 Member States and signed, but not yet ratified by 13 Member States. See also < accessed 6 September

15 2.1.2 Obligations for states Although governments are not the first to be responsible for the harm done to trafficking victims, but rather bad people or bad organisations, 13 it does not free a state from its obligations towards trafficking. It is commonly agreed upon that trafficking in human beings is a gross violation of the human rights of the victim and thus also generates obligations for states. It is for instance the responsibility of the state to take care of the protection of the victims and prosecution and punishment of traffickers. Apart from what has been said by the Court on the positive obligations for states, human rights instruments themselves also place obligations on states. The international human rights framework identifies four core obligations regarding combating trafficking in human beings: the obligation to criminalise trafficking in human beings; the obligation to investigate and prosecute trafficking with due diligence; the protection of and assistance to victims of trafficking and to address the root causes of trafficking The European Convention on Human Rights Whereas several important human rights instruments refer to trafficking directly, 15 the fundamental European instrument on human rights, the ECHR 16, does not. The ECHR primarily guarantees civil and political rights which in the first place mean that states have negative obligations with regard to these rights; they have to abstain from violating the fundamental rights of individuals. The Court however has expressed in its case law that there are also certain positive obligations for states rising under these rights and that these positive obligations rise under all substantive provisions of the ECHR. 17 This established case law on positive obligations together with the international standards on combating trafficking, formed the basis for the Court s interpretation of the ECHR with regard to trafficking in human beings. In its two landmark cases, the Court interpreted the interaction between the rights granted by the Palermo Protocol and the Anti- Trafficking Convention and the rights enshrined in the ECHR Gallagher 2008, p Rijken 2009, p For example the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), General Assembly, 18 December 1979 (UN Doc. A/34/46). Article 6 explicitly states that State Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women. And Article 5(3) of The Charter of Fundamental Rights of the European Union, OJ, C 364/1, 18 December 2000 states that trafficking in human beings is prohibited. 16 Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No. 5, Rome, 4 November Rijken and Koster 2008, p It is remarkable that the Court refers to these two instruments, since both instruments were not yet into force at the time the facts of the case occurred in March Although both Cyprus and Russia signed the Palermo Protocol in 2000, the Anti-Trafficking Convention was not established until May 2005 and Russia has not even signed the Anti-Trafficking Convention until today. See Boot-Matthijssen 2010, p The Netherlands are party of the Palermo Protocol since 27 July 2005 and of the Anti-Trafficking Convention since 1 August

16 2.2 Siliadin v. France For almost five years, Siliadin has been the leading case on trafficking issues since it was the only case in the case law of the Court which clearly concerned trafficking in human beings. 19 It was the first case in which the Court explicitly recognised that Article 4 entails positive obligations as well. The Court already judged that other provisions of the ECHR require positive obligations, but thus never did with regard to Article 4. In its judgment, the Court held that Article 4 ECHR entails a specific positive obligation on member states to penalise and effectively prosecute any act aimed at maintaining a person in a situation described in Article The Court makes clear that penalising only ( window dressing ) is not enough and that trafficking should also be effectively prosecuted. It however did not give any further explanation on how this should be done. In the case of Siliadin, the Court found that the French criminal code did not afford practical and effective protection against the actions of which the applicant was a victim. 21 It followed from this decision that states have to provide for an adequate criminal framework that prohibits and punish trafficking. Member states are therefore required to put in place an appropriate legislative and administrative framework to prohibit and punish trafficking. Although Siliadin has been the leading case on trafficking issues, it left some questions unanswered. If a state does not fulfil its obligation to adequately forbid human trafficking in its criminal law or if it is not effectively enough fought, the state may be liable when trafficking in human beings is established. The exact scope of this state obligation, however, was not fully clear. 22 Furthermore, fear was expressed that the obligation to prohibit and punish traffickers was seen as the principal remedy for human rights violations and that states will ignore the importance of victim protection. 23 The Court has given a more precise interpretation to the scope of this obligation in its judgment in the Rantsev case. 2.3 Rantsev v. Cyprus and Russia Facts of the case Mr Rantsev is the father of Ms Oxana Rantseva, a Russian national, who died in strange circumstances having fallen from a window of a private home in Cyprus in March Ms Rantseva arrived in Cyprus on an artiste 19 OSCE Conference 2008, Successful Prosecution of Human Trafficking Challenges and Good Practices, Conference in Helsinki, September 2008, p Siliadin Siliadin Rijken and Koster 2008, p Cullen 2006, p

17 visa to work as an artiste in a cabaret. After a few days she left a note saying she was going back to Russia. The manager of the cabaret found her in a discotheque some ten days later and took her to the police asking them to declare her illegal in the country and to detain her. The police however concluded that Ms Rantseva was not illegal, refused to detain her and asked the manager to collect her from the police station. The following morning, Ms Rantseva was found dead in the street below the apartment the manager had taken her. An investigation was carried out by the Cypriot authorities and the Cypriot court concluded that Ms Rantseva died in strange circumstances resembling an accident in an attempt to escape from the apartment in which she was a guest and there was no evidence to suggest criminal liability for her death. An autopsy carried out by Russian authorities found that Ms Rantseva died in strange and unestablished circumstances requiring additional investigation. Cyprus, however, responded with saying that the investigations into Ms Rantseva s death were completed with the final verdict of the court. Mr Rantsev continued to press for an effective investigation into his daughter s death and the case became for the Court. Important to note in this case is that Cyprus is a popular destination country for trafficking, especially for commercial sexual exploitation. Trafficking for this purpose is mainly facilitated by the artiste visas given for the cabaret industry. It is widely known that these artiste visas in Cyprus are often used as a cover for foreign women to come to work as prostitutes. The cabarets are often used a cover for brothels and the artiste visa let the women work legally in the prostitution. 24 The Cypriot Government acknowledged in a unilateral declaration that it had violated the obligations rising under Articles 2, 3, 4 and 5(1) and they offered to pay for damages. 25 The Cypriot Government therefore asked the Court to strike out the application because of the content of their unilateral declaration and the ongoing domestic investigation into the circumstances of Ms Rantseva s death. 26 The Court, however found this argument insufficient in the light of its duty to elucidate, safeguard and develop the rules of the ECHR. 27 Together with the serious nature of the allegations of trafficking in this case, the importance of raising awareness, the need to take action to combat trafficking and its scarce case law on the interpretation of Article 4 in the context of trafficking cases, there is a need for continued examination of cases which raise traf- 24 In the decision of the Court reference is made to reports of the Cypriot Ombudsman, the Council of Europe s Human Rights Commissioner and the United States State Department which address the problems and seriousness of the problem regarding the artiste visa regime in relation to trafficking in human beings in Cyprus. 25 Rantsev Rantsev 189. Three independent criminal investigators were appointed to investigate, among other things, the circumstances of Ms Rantseva s death and the circumstances concerning her employment and stay in Cyprus in conjunction with the alleged trafficking. 27 Rantsev

18 ficking issues. 28 The Court further found that respect for human rights required the continuation of the examination of the case and thus rejected Cyprus request Article 2 - Right to life Mr Rantsev complained that there had been a violation of Article 2 by both the Russian and Cypriot authorities on account of the failure of the Cypriot authorities to take steps to protect the life of his daughter and the failure of the authorities of both states to conduct an effective investigation into her death. 30 The Court divides the obligations rising under Article 2 in two parts: the failure to take measures to protect against the risk of life and the procedural obligation to carry out an effective investigation Failure to take measures to protect against a risk to life The Court starts with saying that states have a positive obligation to protect life and that it is violated if it is established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an individual and that they failed to take measures to avoid that risk. 31 The Court notes that although victims of trafficking and exploitation are often forced to live and work in cruel conditions and may suffer violence and ill-treatment at the hands of their employers, the general risk of ill-treatment and violence cannot constitute a real and immediate risk to life. In the present case there were no indications during the time spent at the police station that Ms Rantseva s life was at real and immediate risk. The Court considers that the particular chain of events leading to Ms Rantseva s death could not have been foreseeable and concludes that no obligation to take operational measures to prevent a risk to life arose. The Cypriot authorities thus did not violate the positive obligation to protect Ms Rantseva s right to life The procedural obligation to carry out an effective investigation It follows from Article 2 that states are responsible for and make sure that there should be some form of effective official investigation when individuals have been killed. 33 The Court notes that a number of flaws have occurred in the investigation carried out by the authorities. In light of the ambiguous and unexplained circumstances surrounding Ms Rantseva s death and the allega- 28 Rantsev Rantsev Rantsev Rantsev Rantsev Rantsev

19 tions of trafficking, ill-treatment and unlawful detention in the period leading up to her death, the Court considers that a procedural obligation did arise in respect of the Cypriot authorities to investigate the circumstances of Ms Rantseva s death. It thereby stresses that the investigation was required to consider not only the immediate context of Ms Rantseva s fall from the balcony but also the broader context of Ms Rantseva s arrival and stay in Cyprus, in order to assess whether there was a link between the allegations of trafficking and Ms Rantseva s subsequent death. 34 In order for an investigation to be effective, the Court is of the opinion that member states must take all necessary steps available in order to secure relevant evidence, whether or not located in the territory of the investigating State. 35 Both Cyprus and Russia are parties to the Mutual Assistance Convention 36 and have also concluded a bilateral agreement on legal assistance. 37 Both instruments set out a clear procedure by which the Cypriot Government could have sought assistance from Russia. There is however no evidence that the Cypriot authorities did sought any legal assistance from Russia. The Court finds the refusal of the Cypriot authorities to make a legal assistance request to obtain the testimony of two Russian women who worked with Ms Rantseva particularly unfortunate since it could have been of much value in helping to clarify certain matters which were central to the investigation. 38 According to the Court there had been a procedural violation of Article 2 with regard to the failure of the Cypriot authorities to conduct an effective investigation into Ms Rantseva s death. 39 The Court found that Russia had not violated Article 2, because the Russian authorities were not obliged to investigate Ms Rantseva s death themselves, since her death occurred outside their jurisdiction. According to the Court, Russia had no free-standing obligation to investigate Ms Rantseva s death. 40 However, the Court is of the opinion that as a consequence of the obligation of an investigating state to secure evidence located in other jurisdictions, it is a duty for the state where the evidence is located to render any assistance within its competence and means sought under a legal assistance request. Whereas Cyprus did not request for legal assistance, the Russian authorities were not required to secure evidence themselves. 41 The Court emphasises thereby that the Russian authorities made extensive use of the opportunities to press for action by the Cypriot authorities by requesting several times that Cyprus would carry out additional investigation and that they had cooperated with the Cypriot authorities. 34 Rantsev Rantsev European Convention on Mutual Assistance in Criminal Matters, CETS No. 30, Strasbourg, 20 May Treaty between the USSR and the Republic of Cyprus on Legal assistance in civil, family and criminal law matters of 19 January Rantsev Rantsev Rantsev Rantsev

20 Concluding remarks on Article 2 The positive obligation to protect the life of an individual is violated when authorities knew or ought to have known at the time if there was a real and immediate risk to the life of the individual. The general risk of illtreatment of and violence towards trafficking victims does not constitute a real and immediate risk to life and thus no positive obligation to protect the life rises in this respect. The Court further confirms the positive obligation for states to carry out an effective investigation when Article 2 is involved, but thereby stresses the necessity of a broader investigation if there are allegations of trafficking and if there for instance is a link between the death of a person and the alleged trafficking. For an investigation to be effective, states must take all necessary and available steps to secure relevant evidence. Mutual legal assistance is an important and necessary instrument when evidence is located outside the jurisdiction of the investigating state. The Court further stresses that states should render assistance in the investigation if a state asks for it. The Court thus extends the obligation for an effective investigation raising under Article 2 in that a broader investigation is needed when there are signs of trafficking and attaches value to the importance of international cooperation Article 4 Prohibition of forced labour and slavery Mr Rantsev alleges that there has been a violation of Article 4 by both the Russian and Cypriot authorities in light of their failure to protect his daughter from being trafficked and their failure to conduct an effective investigation into the circumstances of her arrival in Cyprus and the nature of her employment there. 42 The Court starts with the question whether or not trafficking falls within the scope of Article 4 ECHR. The provision includes slavery, servitude and forced labour, but does not explicitly mention trafficking. The Court is of the opinion that trafficking in itself is prohibited by Article 4 since trafficking in human beings, like slavery, by its very nature and aim of exploitation is based on the exercise of powers attaching the right of ownership; it treats human beings as commodities to be bought and sold and put to forced labour; it implies close surveillance of the activities of victims, whose movements are often circumscribed; and it involves the use of violence and threats against victims. 43 The Court continues with saying that it has the obligation to interpret the ECHR in the light of present-day conditions and finds it therefore unnecessary to identify whether the treatment constitutes slavery, servitude or forced and compulsory labour and concludes that trafficking 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 ECHR Rantsev Rantsev Rantsev

21 The Court holds on to its ruling of the Siliadin judgment, but is of the opinion that the duty to penalise and prosecute trafficking is only one aspect of a member state s fight against trafficking. Referring to two of the most important international instruments on trafficking, the Palermo Protocol and the Anti-Trafficking Convention, and their referral to the need for a comprehensive approach to combat trafficking, the Court stresses the importance of preventing trafficking and the need for protection of victims of trafficking. According to the Court it is clear that only a combination of measures addressing all three aspects - prevent, protect and punish can be effective in the fight against trafficking and the Court is of the opinion that the extent of the positive obligations arising under Article 4 must be considered in a broader context. 45 The Court goes into the obligation to take operational measures to protect and considers that in order for a positive obligation to take operational measures to arise it must be demonstrated that the state authorities were aware, or ought to have been aware, of circumstances giving risk to a credible suspicion that an identified individual had been, or was at real and immediate risk of being, trafficked or exploited within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention. 46 The obligation to take operational measures must, however, not impose an impossible or disproportionate burden on a state. 47 Relevant to the consideration of the proportionality of any positive obligation are the obligations for a state to try to provide for the physical safety of victims while in their territory, to establish comprehensive policies and programs to prevent and combat trafficking and to provide relevant training for law enforcement and immigration officials. 48 According to the Court, Article 4 also entails the procedural obligation to investigate situations of potential trafficking. In addition to the obligation to conduct a domestic investigation the Court stresses, as it also did under Article 2, the importance of an effective cooperation between the relevant authorities of different states in cross-border trafficking cases. Member states are 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. 49 So besides the positive obligation to put in place an appropriate legislative and administrative framework to combat trafficking, the Court goes further in saying that it follows from Article 4 ECHR that states have the positive obligation to take protective measures and the procedural obligation to investigate trafficking. 45 Rantsev Rantsev Rantsev Rantsev 287. The Court hereby refers to Articles 6, 9 and 10 of the Palermo Protocol. 49 Rantsev

22 Positive obligation to put in place an appropriate legislative and administrative framework Whereas the Siliadin judgment left unclearness about the exact scope of the obligation to put in place an appropriate legal framework, the Court gives further interpretation to this in the Rantsev case. The Court considers that the spectrum of safeguards set out in national legislation must be adequate to ensure the practical and effective protection of the rights of victims. In addition to criminal law provisions to punish traffickers, states also need to put in place adequate measures regulating businesses often used as a cover for human trafficking. Furthermore, a State s immigration rules must address relevant concerns relating to encouragement, facilitation or tolerance of trafficking. 50 The Court considered that the Cypriot trafficking legislation itself is satisfactory. 51 The Court however criticised the Cypriot immigration policy and the legislative shortcomings in this respect, which encouraged the trafficking of women to Cyprus. 52 The Court found that the existing artiste visa regime did not afford Ms Rantseva practical and effective protection against trafficking and exploitation. The Council of Europe s Human Rights Commissioner (hereafter: the Commissioner) notices in one of his reports that it is well known that there is obviously a risk that the young women who enter Cyprus on artiste visas may be victims of trafficking in human beings or later become victims of abuse or coercion. These women are officially recruited as cabaret dancers, but are nevertheless often expected to work as prostitutes. 53 The fact that the Cypriot government provides information leaflets, given to women before entering the country did not seem to affect the opinion of the Court that the efforts made by the Cypriot government were not effective enough Positive obligation to take protective measures As said before, it is widely known that many women are being trafficked to Cyprus on artiste visas and are being sexual exploited by cabaret owners and managers. The Cypriot Ombudsman notes in this respect that especially the number of women coming from Russia is growing. 55 According to the Court there can be no doubt that the Cypriot authorities were aware of this. When Ms Rantseva was brought to the police station by her manager, he told the police she was a Russian national, working as a cabaret artiste and left her em- 50 Rantsev Rantsev 290. The Cypriot law prohibits trafficking and sexual exploitation, set outs severe penalties and provides for a duty to protect victims. 52 Rantsev Rantsev 100, from the follow-up report of 26 March 2006 by the Commissioner on the progress made in implementing his recommendations (CommDH(2006)12), para Rantsev 103. The Commissioner stated in one of his report that It seems that the special information leaflet given to women entering the country on such a permit is of little effect, even though the woman need to have read and signed the leaflet in the presence of an official, report of 12 December 2008 by the Commissioner on his visit to Cyprus (CommDH(2008)36), para Rantsev

23 ployment after being in Cyprus for only a few days. 56 The Court hereby recalls the obligation of the Cypriot authorities in light of the Palermo Protocol and the Anti-Trafficking Convention to ensure adequate training to those working in relevant fields to enable them to identify potential trafficking victims. 57 States accepted to provide or strengthen training for law enforcement, immigration and other relevant officials in the prevention of trafficking of persons. 58 The Court is of the opinion that there were sufficient indicators available to the police authorities, against the general backdrop of trafficking issues in Cyprus, for them to have been aware of the circumstances giving rise to a credible suspicion that Ms Rantseva was a victim of trafficking or exploitation. Accordingly, there rose a positive obligation to investigate without delay and to take necessary operational measures to protect Ms Rantseva. 59 The failures of the police authorities in this case were multiple 60 and together with the circumstances which gave rise to a credible suspicion that Ms Rantseva might have been trafficked or exploited, resulted in a failure by the Cypriot authorities to take measures to protect her and thus resulted in a violation of Article Procedural obligation to investigate trafficking As said, the Court is of the opinion that states have the duty in cross-border trafficking cases to cooperate effectively with the relevant authorities. The Court hereby emphasises the need for a full and effective investigation covering all aspects of trafficking from the recruitment to the exploitation. Accordingly, Russia had the obligation to investigate the possibility that individual agents or networks operating in Russia were involved in trafficking Ms Rantseva to Cyprus. 62 Russia was held responsible for the fact that the authorities took no steps to identify those involved in the recruitment of Ms Rantseva or the methods of recruitment used. Since the recruitment had occurred on Russian territory, the Russian authorities were in the best position to conduct an effective investigation. The Court found that this was even more serious in the light of Ms Rantseva s following death and the mystery surrounding the circumstances of her departure from Russia. 63 The Court considers that the obligation for the Cypriot authorities to conduct an effective investigation into the trafficking allegations is included in the general obligation arising under Article 2 to conduct an effec- 56 Rantsev Article 10 of the Palermo Protocol emphasises the need for effective exchange of information between authorities and training of law enforcement and immigration officials and Article 10 of the Anti-Trafficking Convention sets outs measures regarding training and cooperation. 58 Rantsev Rantsev Rantsev 298. Firstly, the police authorities failed to make immediate further inquiries into whether Ms Rantseva had been trafficked. Secondly, they did not release her but decided to confine her into the custody of the manager by calling him asking to collect her. Thirdly, no attempt was made to take measures to protect her. 61 Rantsev Rantsev Rantsev

24 tive investigation into Ms Rantseva s death. The question of the effectiveness of the investigation was already examined under Article 2 and the Court found no reason to examine this separately under Article Concluding remarks on Article 4 The Court interpreted the ECHR in light of the Palermo Protocol and the Anti-Trafficking Convention by stating that trafficking in human beings falls within the scope of Article 4 and by broadly extending the positive obligations under Article 4. With regard to the obligation to put in place an appropriate legislative and administrative framework the Court recalls that the safeguards in national legislation must be adequate to ensure practical and effective protection. Important in this respect is that, in addition to criminal law provisions, states must also put in place adequate measures regulating businesses which can be used as a cover for trafficking. The extent of the obligation to take protective measures is delineated by the Court in light of the three obligations to provide for the physical safety of trafficking victims, to establish comprehensive policies and programs to prevent trafficking and to provide relevant training for law enforcement and immigration officials. Important for the obligation to investigate trafficking is that states seek international cooperation in cross-border trafficking cases to make sure that the investigations into trafficking cover all aspects. Therefore, states have to make use of the available instruments e.g. legal assistance requests - to set up cooperation with other states Article 5 Right to liberty and security Mr Rantsev complained that the Cypriot authorities violated Article 5 1 ECHR in so far as his daughter was detained at the police station, released into the custody of her manager and subsequently detained at the apartment. 65 The Court examined the alleged violation by looking if there was a deprivation of liberty, whether this was the responsibility of Cyprus or not and if the deprivation of liberty was compatible with Article 5 1. The Court found that the detention at the police station and the subsequent confinement to the private apartment amounted to a deprivation of liberty. It was reasonable for the Court to assume that Ms Rantseva did not remain in the apartment of her own free will and the relative short duration of the detention did not affect this conclusion. 66 To examine if Cyprus was responsible for the deprivation of liberty, the Court had to examine the part played by the police officers and determine whether the deprivation of liberty in the apartment engaged the responsibility of the Cypriot authorities. 67 The argument that Ms Rantseva did 64 Rantsev Rantsev Rantsev Rantsev