Trafficking in Human Beings, and Forced and Compulsory Labor: A Case Study of “Chowdury and Others v. Greece”

Abstract

Trafficking in human beings and forced labor has found modern forms in the contemporary world. As Sustainable Development Goal (SDG) 8.7 mentions, one of the main commitments of the States’ parties is to “take immediate and effective measures to eradicate forced labor, end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labor including the recruitment and use of the child soldiers, and by 2025 end child labor in all its forms”. Within this paper one of the landmark decisions of the European Court of Human Rights (ECtHR) regarding the case of Chowdury and others v. Greece on human trafficking and forced or compulsory labor will be properly discussed and scrutinized.

Under this case study, the legal reasoning and new broad interpretation of article 4 (2) of the European Convention on Human rights about the prohibition of forced and compulsory labor by ECtHR will be highlighted in depth. Another crucial part of this case study will comprise an in depth analysis of the mistakes and confusion of the Greek national courts in relation to definitions of servitude and human trafficking, and forced and compulsory labor. However, as ECtHR rightly demonstrates, servitude is an aggravated form of forced and compulsory labor and the victims’ feelings and the permanency of their slavery-like situations play an important role in this regard. Consequently, it concludes that there is a huge difference between these two legal concepts; the freedom of migrants to move freely in the region during their leisure time as well as their ability to break their work relationships with their employers, does not necessarily change their situation as forced laborers.

Introduction

On 30 March of 2017 ECtHR found a violation of Art. 4 (2) of the European Convention on Human Rights regarding the prohibition of forced or compulsory labor (Art. 4: Prohibition of slavery and forced labor 1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labor. 3. For the purpose of this article the term “forced or compulsory labor” shall not include: (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Art. 5 of this Convention or during conditional release from such detention; (b) any service of a military character or, in case of conscientious objectors in countries where they are recognized, service exacted instead of compulsory military service; (c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community; (d) any work or service which forms part of normal civic obligations).

Furthermore, the Court provided a sum of EUR 16 000 each to those who were applicants before the Patras Criminal Court and EUR 12 000 each to the rest of the applicants. Concerning court expenses, the Court also provided a further sum of 4 363, 64 between the applicants.

Principal facts

The applicants, Bangladeshi migrants living in Greece without a work permit, were recruited on different days between October 2012 and February 2013 in Athens and other places to work on a big strawberry field at Manolada. In this region, workers are mostly irregular migrants from Pakistan and Bangladesh who are generally employed on a seasonal basis. These irregular migrants were promised a wage of 22 Euros for seven hours work and 3 Euros for each hour of overtime. They started working from 7 a.m. to 7 p.m. Despite these long working hours, the laborers were living in makeshift shacks without any running water and lavatory facilities. Furthermore, the employers warned them that they would be only paid if they continued to work.

In February, March and April 2013 the workers went on strike in order to ask for their unpaid wages but they did not succeed. On 17 April, the employers recruited other Bangladeshi migrants. Consequently, the 100-150 workers who were employed during 2012-2013 tried to move on their employers, demanding their unpaid wages. One of the armed guards then opened fire on them and 30 workers (including 21 of the applicants) were seriously injured. The injured people were transferred to hospital where they were questioned after that by the local police.

On 18 and 19 April 2013, the applicant’s employers together with the armed guards were arrested by police. Subsequently, four suspects were charged with attempted murder and human trafficking under Art. 323A of the Criminal Code by the Amaliada public prosecutor. On 22 April 2013, the thirty-five applicants who had been injured during the incidence were granted lawful residence permits under section 12 of Law no. 3064/2002 (on the repression of human trafficking, crimes against sexual freedom, child pornography, and more generally sexual exploitation).

Indeed, this happened because they were victims of human trafficking. The complaints of the other workers (who had also been at the scene of incident) against the employers were rejected by the Amaliada public prosecutor, on the grounds that they should have made their reports to the police immediately after the incident without any delay, just as the other 35 injured applicants had done. In fact, according to the Amaliada public prosecutor, they made their complaint only after learning that they could have gotten residence permits as victims of human trafficking. Furthermore, the Patras Court of Appeal also dismissed their application, based on the grounds of preliminary judgment.

In a judgment of 30 July 2014, the Assize Court acquitted the defendants on the charge of trafficking in human beings, based on the ground that the required material elements of crime did not exist in the present case. It convicted just one of the employers and one of the armed guards of grievous bodily harm & unlawful use of firearms to prison sentences. In addition, these prison sentences were subsequently commuted to a financial penalty (5 Euros per day of detention). It also ordered them to pay 1500 Euros to the 35 workers who were identified as victims (43 Euros per person).

The Assize Court observed that, wages in the region had been the same for similar migrant workers in other fields and they had not been forced to accept them. In addition, the Assize Court found that workers had been informed and were satisfied with the conditions of employment and they could move freely in the region during their free time. Indeed, the Court further indicated that the workers had not been coerced to work and were not exploited by the defendants based on their vulnerable circumstances. It believed that there had not been a situation of vulnerability for the workers. Moreover, it noticed that many workers had stated they would have continued to work for their employers if they had paid their wages. On 30 July 2014, the convicted defendants appealed towards the judgment of the Assize Court.

Further to this, on 21 October 2014 the workers’ lawyers asked the public prosecutor at the Cassation Court to lodge an appeal against the judgment of the Assize Court. The lawyers believed that Assize Court had not adequately examined the charge of human trafficking given that Assize Court had not precisely investigated the exploitation of the migrant workers due to their vulnerable situation by the accused. However, the public prosecutor rejected the request of the workers’ lawyers and subsequently, the judgment of Assize Court regarding human trafficking became irrevocable.

Analyzing the Decision of European Court of Human rights (ECtHR)

In this section, for a better understanding of the ECtHR’s view about the present case, its judgment will be properly analysed and discussed. According to the opinions of some scholars in the present case the Court considered that Art. 4 (2) of the European Convention on Human Rights should be interpreted in the light of Council of Europe Convention on Action against Trafficking in Human Beings (Stoyanova, (2017), https://strasbourgobservers.com).

Even though this Trafficking Convention had not come into force at the time of the event in Greece (entered into force only on August 2014), it does not prevent the Court from using it as a relevant source in considering the state’s positive obligations under Art. 4 of the European Convention on Human Rights.

Indeed, there is a set of positive operational measures included in the Trafficking Convention which the Court reflects in its interpretation of Art. 4 (Ibid, 2017). As a matter of fact, the ECtHR in its historic judgment about Rantsev v. Cyprus and Russia (2010) found that there are three significant positive obligations for the member States according to Art. 4 of the ECHR. These positive obligations can be categorized as: (i) a legislative and administrative framework to prevent and punish human trafficking practices, (ii) taking essential measures to protect actual and potential victims of trafficking, (iii) having a procedural obligation to investigate situations of potential human trafficking (Avellino, (2011), https://strasbourgobservers.com).

However, the ECtHR discovered that the Greek authorities had to take required measures in order to prevent human trafficking, to protect its victims and to criminalize it, as well as investigating and punishing this sort of criminal behavior appropriately. In this sense, the Court indicates that despite the State’s knowledge concerning employer’s abuses both financially and physically against migrant workers, the officials did not take enough and concrete actions towards these labor exploitations. Indeed, the State’s response to the abuses made by the employers had been insufficient in accordance with the positive obligations under Art. 4 (a) of the Convention on Action against Trafficking in Human Beings (Ibid, 2017).

In the Case of Rantsev v. Cyprus and Russia (2010) the ECtHR found that Art. 4 of the European Convention on Human Rights requires member States to impose appropriate measures regulating professions which are usually used as a cover for trafficking in human beings. In addition, it argued that the State’s immigration rules should contain essential measures addressing the relevant concerns of facilitation, encouragement and tolerance of human trafficking. Indeed, within this case the Court found that official authorities are obligated to react properly and effectively to human trafficking practices when such practices come to their attention or where there is a situation of real risk affecting an individual as a potential victim (Buys, (2010), echrblog.blogspot.com).

Another important issue which the ECtHR observed in the present case, was that the national court failed to conduct sufficient and accurate investigation regarding applicant’s complaints. As a matter of fact, the claims of those applicants who did not take part in the proceedings before the Assize on human trafficking and forced labor against employers were rejected only based on their delay to make their reports to the police and without further investigation.

Indeed, the Greek Court failed to comply with Art. 13 of the Convention of Anti-Trafficking (Each Party shall provide in its internal law a recovery and reflection period of at least 30 days, when there are reasonable grounds to believe that the person concerned is a victim. Such a period shall be sufficient for the person concerned to recover and escape the influence of traffickers and/or to take an informed decision on cooperating with the competent authorities. During this period, it shall not be possible to enforce any expulsion order against him or her. This provision is without prejudice to the activities carried out by the competent authorities in all phases of the relevant national proceedings, and in particular when investigating and prosecuting the offences concerned. During this period, the Parties shall authorize the persons concerned to stay in their territory).

This article considers a so called “recovery and reflection period” of at least 30 days so that the victim of human trafficking could escape the influence of the traffickers and take an informed decision to cooperate with official authorities (Brunovskis, 2012). These migrants were recruited and working in the same conditions as the other group of migrants who had been present in proceedings before the Assize Court. But the prosecutor did not take effective steps to properly investigate their allegations of forced labor and human trafficking.

Regarding the other group of migrants who were civil parties in the Assize Court procedures, the Greek authorities failed to perform a proper investigation as well. Indeed, even though they tried to investigate these human trafficking and forced labor crimes and to prosecute the accused as well as arranging a trial for them, these efforts ended up in an acquittal for all defendants. This acquittal came as a result of the Assize court applying a very narrow interpretation of the definitions of human trafficking and forced labor crimes.

It is worthy of note that the context of human trafficking and forced labor was never looked into by the Greek authorities and actually their national court was confused between definitions of servitude and human trafficking and forced labor (Stoyanova, 2017, https://strasbourgobservers.com).

These three concepts are included within Art. 4 of ECHR but they actually have different legal meanings. The facts and circumstances in question are compatible with the definition of human trafficking and forced labor included in Art. 3 (a) of the Palermo Protocol (“Trafficking in persons” shall mean the recruitment, transportation, transfer, harboring 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. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs”), and Art. 4 of the Council of Europe’s Anti-Trafficking Convention.

Furthermore, Art. 323A of the Greek Criminal Code repeats the definitions of human trafficking and forced labor contained within these two above-mentioned international instruments. However, the Assize court tried to interpret the migrant’s circumstances in accordance with the crime of servitude, given that, the migrant workers had been free to move in the region during their leisure time plus they had an opportunity to leave their employment relationship whenever they wanted to do so. This is an important point which needs to be properly scrutinized and discussed here.

According to the Art. 1 of the 1926 Slavery Convention and Art. 7 of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, “slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”. It is also included in Art. 4 (a) of the 2005 Convention on Action against Trafficking in Human Beings which defines trafficking in human beings. Moreover, for Convention purposes “servitude means an obligation to provide one’s services that is imposed by the use of coercion, and is to be linked with the concept of slavery” (Council of Europe, 2018).

Generally speaking, what plays a crucial role in servitude is a serious form of denial of freedom. In addition, it involves providing to conduct particular services for others and living as a serf on another person’s property who is unable to change his/her condition (Ibid, 2018). Whereas, according to Art. 2 (1) of the 1930 Forced Labor Convention, forced or compulsory labor is “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily” (ILO, 1930).

In fact, the ECtHR distinguished between servitude and human trafficking and forced labor. The Court noted that servitude is an aggravated form of forced and compulsory labor. It demonstrated that a fundamental distinction between servitude and forced labor relies on “victim’s feeling” that their circumstances are permanent and there is not any possibility to change these conditions (Dermine, 2013, www.academia.edu). However, it found that having a possibility to move freely in the region or a chance to abandon the work relationship cannot be essential elements of trafficking in human beings and forced labor as a mean of it (Yazdani, 2017, https://www.antislavery.org). Even assuming that migrant workers had been primarily satisfied with working and living conditions a change in employer’s behavior towards applicants (threats and violence) can be considered as a powerful factor changing the previous circumstances.

Moreover, the applicants could not have been forced to continue their employment relationships because they had often been seasonal workers. Hence, the only point for considering them as victims of human trafficking and forced labor was their vulnerable situation. Indeed, this group of migrant workers due to their illegal residence situation and a fear of being arrested and subsequently detained and trialed, had no other alternatives than either quitting their workplace or breaking their employment relationship with their employers. In addition, their overdue payments played a crucial role in obliging them to continue working for their employers in the strawberry fields.

However, they were threatened by the defendants who stated that if they did not continue to work on their farms, they would not receive their overdue wages. Furthermore, after the migrant’s strike against the employers for their overdue wages, the migrants were physically threatened by the employers who said they would be killed and their tents would be burnt down. Thus, it is so clear from these facts which employers tried to exploit migrants through forced and compulsory labor which according to the Art. 4 (a) of the Council of Europe Convention on Action against Trafficking in Human Beings could be one of the means of human trafficking. In other words, the migrant’s prior consent cannot impede considering employment as a mean of human trafficking.

We cannot speak about voluntary offer of a migrant in order to work for an employer when the latter takes advantage of victim’s vulnerability and abuses his power in order to exploit the former. However, the ECtHR correctly observed that while the Greek national courts had taken required steps to respect the international instruments on trafficking in human beings within their national legislation (Art. 323A of Criminal Code), they had confused the legal definition of servitude with human trafficking (Stoyanova, 2018, https://strasbourgobservers.com). Thus, although the situation of migrant workers did not amount to servitude, their working and living conditions put them into a status of forced labor and human trafficking.

On the other hand, the prison sentence imposed on two defendants because of grievous bodily harm was subsequently commuted to pecuniary sanction of EUR 5 per day of detention. Moreover, the Assize Court failed to comply with Art. 15 of Anti-Trafficking Convention which provides for a compensatory fund and obliges the Contracting States to take required measures in their internal laws to generate such compensation (Art. 15 (3): Each Party shall provide, in its internal law, for the right of victims to compensation from the perpetrators. (4) Each Party shall adopt such legislative or other measures as may be necessary to guarantee compensation for victims in accordance with the conditions under its internal law, for instance through the establishment of a fund for victim compensation or measures or programs aimed at social assistance and social integration of victims, which could be funded by the assets resulting from the application of measures provided in Article 23).

They are also obliged to provide in their internal laws for the right of victims to ask for compensation from the persons who commit the offence of human trafficking. The amount of civil compensation ordered by the Assize court for grievous bodily harm was just EUR 43 for each injured migrant. It shows that the Greek court actually failed to provide adequate pecuniary and non-pecuniary compensations to the applicants who suffered from their employer’s offences.

Conclusion

This momentous judgment of the European Court of Human Rights which is the first judgment regarding Art. 4 of the ECHR in the field of agricultural work can be considered as a great achievement in terms of the protection of rights of migrant workers (Giulini, Manolada, 2017, https://g2red.org/en), as well as human trafficking and forced labor prevention (Yazdani, 2017, https://www.antislavery.org) .

It is worthy of note that the ECtHR in its landmark decision observed that all signatory States have a positive obligation under Art. 4 of the ECHR to take effective steps towards combatting trafficking in human beings as well as preventing forced and compulsory labor. Firstly, they have to prevent human trafficking and forced labor practices. In fact, preventing trafficking in human beings and forced labor is considered the peremptory norm which all States (here Greece) should respect, regardless of whether or not they are members of the Convention on Action against Trafficking in Human Beings.

Taking effective and appropriate steps in order to prevent human trafficking and forced labor may comprise all required measures from controlling the national borders to enhancing collaboration between various national organizations and institutions in charge of human trafficking (Council of Europe, 2017). Secondly, they will have a main accountability to investigate properly these criminal practices according to the particular circumstances of each individual case. Furthermore, they are also obliged to facilitate identifying victims of human trafficking and forced labor by trained and qualified experts and trying to protect them from traffickers.

Assisting victims of human trafficking and forced labor should also include recovering their physical, psychological and social situations. As previously mentioned, in the present case the national court rejected the applications of uninjured workers and did not carry out sufficient investigations in order to also recognize them as victims of human trafficking and forced labor, whereas these migrants were working on the same conditions as the injured laborers. These migrants, who did not take part in the proceedings before the Assize Court, were denied solely due to their delay in making their reports to the police. Hence, as previously mentioned the national authorities failed to comply with Art. 13 of the Convention of Anti-Trafficking regarding the so-called “recovery and reflection period”.

Finally, the member states have to keep their commitments under international instruments by providing required internal laws and principles in order to punish efficiently those convicted of human trafficking and forced labor.

As mentioned previously, in the present case the Greek authorities had effectively succeeded in taking enough steps to criminalize human trafficking and forced labor crimes under internal law (Art. 323 A of Greek Criminal Code). Nevertheless, the ECHR found that the official authorities had failed to properly investigate the human trafficking and forced labor practices that were performed by the defendants and consequently, they were unsuccessful in appropriately punishing the convicted men. From my point of view, the ECtHR rightly discovered that the facts and circumstances of the present case had been wrongly interpreted according to the legal definition of servitude, while they are in line with definition of trafficking of human beings and forced labor encircled in Art. 4 of Anti-Trafficking Convention and Art. 3 (a) of the Palermo Protocol.

This mistake resulted from a very narrow interpretation of Art. 4 (2) of the European Convention on Human Rights by the Greek national court. In addition, it is an indisputable reality that new forms of trafficking in human beings are increasing in the modern world which creates more national and international responsibility to prevent and punish these new practices and to protect their victims effectively. However, in the present case the ECtHR tried to give a broader interpretation of Art. 4 (2) of the European Convention on Human Rights to protect migrant workers against employer’s conducts. It certified that although migrant workers were free to move in the region during their leisure time and had the possibility of leaving their employment relationship, they had been exploited by defendants due to their illegal status.

In sum, according to the ECtHR taking advantage of migrant’s vulnerability by their employers which hugely resulted in abusing them was exactly in line with the meaning of Art. 4 (2) of the ECHR concerning prohibition of forced or compulsory labor. Therefore, the Court judgment played an important role in the protection of the rights of migrant workers and opened a brighter way for future interpretations of Art. 4 (2) in terms of human trafficking and forced labor.