European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2010/380.html
Cite as: [2010] ECHR 380
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FOURTH SECTION
Application no.
4239/08
by CN
against the United
Kingdom
lodged on 24 January 2008
STATEMENT OF FACTS
THE FACTS
The applicant, C.N., is a Ugandan national who was born in 1979 and lives in Leeds. She is represented before the Court by Mrs G Morgan of Bindmans LLP, a lawyer practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant travelled to the United Kingdom from Uganda on 2 September 2002. She had been raped several times in Uganda and her purpose in travelling to the United Kingdom was to escape from the sexual and physical violence which she had experienced. She intended to work to support herself in the United Kingdom and to pursue further education. A relative named P.S. and a Mr Abdul helped the applicant obtain a false passport and a visa to enable her to enter the United Kingdom.
On arrival in the United Kingdom, P.S. took the applicant's passport and travel documents. These documents were never returned to her.
The applicant lived for a number of months at various houses belonging to P.S. in London. He constantly warned her that she should not talk to people and that she could easily be arrested or otherwise come to harm in London. She was also shown violence on television and told that this could happen to her if she was not careful.
In January 2003 P.S. introduced the applicant to a man called Mohammed who ran a business providing carers and security personnel for profit. The applicant attended a short carers' training course and thereafter did some overnight shifts as a carer and as a security guard in a number of locations. On each occasion payment was made by the client to Mohammed, who transferred a share of the money to P.S.'s bank account in the apparent belief that he would pass it on to the applicant. At no time, however, did the applicant receive any payment for the work that she did, which she estimated to be in the region of GBP 500.
The applicant was then sent to work as a live-in carer for an elderly Iraqi couple (“Mr and Mrs K”). The role was physically and emotionally demanding as Mr K. suffered from Parkinson's disease and the applicant was required to change his clothing, feed him, clean him and lift him as necessary. The applicant was permanently on-call during the day and during the night. On one Sunday every month, she was given a couple of hours leave. On these occasions, she would usually be collected by Mohammed and driven to P.S.'s house for the afternoon. After a couple of years, she was permitted to take public transport but she was warned that it was not safe and that she should not speak with anyone.
The applicant received no significant payment for her labour. Occasionally Mr and Mrs K would give her presents or second-hand clothes, but the GBP 1600 that they paid every month for her services was sent directly to Mohammed by cheque. A percentage of that money was passed by Mohammed to P.S. on the apparent understanding that it would be paid to the applicant. P.S. would occasionally give the applicant GBP 20 or GBP 40 when she went to his home on her monthly afternoon of leave, and she was also provided with a mobile phone. It was sometimes suggested that P.S. was saving up her income for her education, but no money was ever given to the applicant.
In August 2006 Mr and Mrs K went on a family trip to Egypt. The applicant was unable to accompany them because she did not have a passport. In their absence, the applicant was taken to a house belonging to P.S. When he left for a business trip to Uganda, she remained in the house with his partner, Harriet. Harriet effectively prevented her from leaving the house and warned her not to speak with anyone.
On 18 August 2006 the applicant managed to leave the house. She went into a local bank, where she asked someone to call the police. Before the police arrived, she collapsed and was taken to St Mary's Hospital, where she was diagnosed as HIV positive. She was also suffering from psychosis, including auditory hallucinations.
The applicant remained in hospital for one month. Harriet visited the applicant in hospital to exert pressure on her to return to P.S.'s house. She warned her that when she left the hospital, she would have to pay for anti-retroviral medication and if she did not return to the house she would be “on the streets”.
When Mr and Mrs K returned from Egypt, their daughter visited the applicant in hospital and helped her to make an asylum claim. That claim was unsuccessful, but is currently subject to an appeal.
The police interviewed the applicant on 31 June 2007. On 26 September 2007 the police informed the applicant's former solicitor that there was “no evidence of trafficking for domestic servitude in the interview”.
On 26 August 2008 the applicant's current solicitor wrote to the police asking for the reasons for discontinuing the investigation. On 5 September 2008 the police informed the solicitor that “a decision was taken not to proceed with the matter as there was no evidence that she [the applicant] had been trafficked”. On 18 September 2008 the police reiterated that following the interview “it was decided that there was insufficient evidence to substantiate the allegation of trafficking and thus further investigation was not warranted”.
On 5 December 2008 the applicant's solicitor wrote to the police to ask them to consider prosecutions for other offences, including a jus cogens offence of slavery or forced labour.
At a meeting with the applicant on 11 March 2009, a police officer indicated that it was the Metropolitan Police's provisional view, given expressly without formal authority, that there was no offence in English criminal law which applied to the facts of the case. The police apologised for the cursory manner in which the case had been dealt with previously and confirmed that the applicant's account was credible.
On 12 August 2009 the police wrote to the applicant's solicitor in the following terms:
“I can confirm that after undertaking an investigation of the case including interviewing Ms CN a decision has been made to conclude the investigation. This decision is based on several factors, one being that after consultation with the legal representative of the Human Trafficking Centre the circumstances of Ms CN's case did not appear to constitute an offence of trafficking people for the purposes of exploitation contrary to the Asylum and Immigration Act 2004.
I am not aware of any specific offence of forced labour or servitude beyond that covered by section 4 of the Asylum and Immigration Act 2004 though regulation of working conditions are controlled by such areas as health and safety legislation and in certain instances the Gangmasters Act 2004...”
In October 2009 the Government of the United Kingdom accepted in Parliament that there was a lacuna in domestic law as it applied to forced labour and servitude. Section 71 of Coroners and Justice Act 2009, which received Royal Assent on 12 November 2009, made slavery, servitude and forced or compulsory labour criminal offences punishable by a fine and/or up to fourteen years' imprisonment. Section 71 is not yet in force.
B. Relevant domestic law and practice
Section 4 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 created the offence of trafficking people for exploitation. It provides that:
“(1) A person commits an offence if he arranges or facilitates the arrival in the United Kingdom of an individual (the “passenger”) and—
(a) he intends to exploit the passenger in the United Kingdom or elsewhere, or
(b) he believes that another person is likely to exploit the passenger in the United Kingdom or elsewhere.
(2) A person commits an offence if he arranges or facilitates travel within the United Kingdom by an individual (the “passenger”) in respect of whom he believes that an offence under subsection (1) may have been committed and—
(a) he intends to exploit the passenger in the United Kingdom or elsewhere, or
(b) he believes that another person is likely to exploit the passenger in the United Kingdom or elsewhere.
(3) A person commits an offence if he arranges or facilitates the departure from the United Kingdom of an individual (the “passenger”) and—
(a) he intends to exploit the passenger outside the United Kingdom, or
(b) he believes that another person is likely to exploit the passenger outside the United Kingdom.
(4) For the purposes of this section a person is exploited if (and only if)—
(a) he is the victim of behaviour that contravenes Article 4 of the Human Rights Convention (slavery and forced labour),
(b) he is encouraged, required or expected to do anything as a result of which he or another person would commit an offence under the Human Organ Transplants Act 1989 (c. 31) or the Human Organ Transplants (Northern Ireland) Order 1989 (S.I. 1989/2408 (N.I. 21)),
(c) he is subjected to force, threats or deception designed to induce him—
(i) to provide services of any kind,
(ii) to provide another person with benefits of any kind, or
(iii) to enable another person to acquire benefits of any kind, or
(d) he is requested or induced to undertake any activity, having been chosen as the subject of the request or inducement on the grounds that—
(i) he is mentally or physically ill or disabled, he is young or he has a family relationship with a person, and
(ii) a person without the illness, disability, youth or family relationship would be likely to refuse the request or resist the inducement.
(5) A person guilty of an offence under this section shall be liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 14 years, to a fine or to both, or
(b) on summary conviction, to imprisonment for a term not exceeding twelve months, to a fine not exceeding the statutory maximum or to both.”
On 12 November 2009 the Coroners and Justice Act 2009 received Royal Assent. Section 71, which will come into force “on such day as the Secretary of State may by order appoint”, provides as follows:
“71 Slavery, servitude and forced or compulsory labour
(1) A person (D) commits an offence if—
(a) D holds another person in slavery or servitude and the circumstances are such that D knows or ought to know that the person is so held, or
(b) D requires another person to perform forced or compulsory labour and the circumstances are such that D knows or ought to know that the person is being required to perform such labour.
(2) In subsection (1) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 of the Human Rights Convention (which prohibits a person from being held in slavery or servitude or being required to perform forced or compulsory labour).
(3) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding the relevant period or a fine not exceeding the statutory maximum, or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine, or both.
(4) In this section—
“Human Rights Convention” means the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4 November 1950;
“the relevant period” means—
(a) in relation to England and Wales, 12 months;
(b) in relation to Northern Ireland, 6 months.”
C. International Instruments
1. The ILO Forced Labour Convention
Articles 1 and 2 of the Convention provide as follows:
“Article 1
1. Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress the use of forced or compulsory labour in all its forms within the shortest possible period.
2. With a view to this complete suppression, recourse to forced or compulsory labour may be had, during the transitional period, for public purposes only and as an exceptional measure, subject to the conditions and guarantees hereinafter provided.
3. At the expiration of a period of five years after the coming into force of this Convention, and when the Governing Body of the International Labour Office prepares the report provided for in Article 31 below, the said Governing Body shall consider the possibility of the suppression of forced or compulsory labour in all its forms without a further transitional period and the desirability of placing this question on the agenda of the Conference.
Article 2
1. For the purposes of this Convention the term forced or compulsory labour shall mean 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.
2. Nevertheless, for the purposes of this Convention, the term forced or compulsory labour shall not include--
(a) any work or service exacted in virtue of compulsory military service laws for work of a purely military character;
(b) any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country;
(c) any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations;
(d) any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population;
(e) minor communal services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services.”
2. The Council of Europe Convention on Action Against Trafficking
The United Kingdom ratified the Convention on 17 December 2008 and it came into force on 1 April 2009.
Article 4 defines “trafficking in human beings" as follows:
“(a) 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. Exploitation shall include, 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;
(b) The consent of a victim of “trafficking in human beings” to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
Article 19 provides that:
“Each Party shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences under its internal law, the use of services which are the object of exploitation as referred to in Article 4 paragraph (a) of this Convention, with the knowledge that the person is a victim of trafficking in human beings.”
3. The Slavery Convention 1926
Article 5 of this Convention, which the United Kingdom ratified in 1927, provides that:
“The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage, to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery.
(1) Subject to the transitional provisions laid down in paragraph (2) below, compulsory or forced labour may only be exacted for public purposes.
(2) In territories in which compulsory or forced labour for other than public purposes still survives, the High Contracting Parties shall endeavour progressively and as soon as possible to put an end to the practice. So long as such forced or compulsory labour exists, this labour shall invariably be of an exceptional character, shall always receive adequate remuneration, and shall not involve the removal of the labourers from their usual place of residence.
(3) In all cases, the responsibility for any recourse to compulsory or forced labour shall rest with the competent central authorities of the territory concerned.”
4. Recommendations 1523 (2001) and 1663 (2004) of the Parliamentary Assembly of the Council of Europe
Recommendation 1523 (2001) provides, as relevant, that:
“1. In the last few years a new form of slavery has appeared in Europe, namely domestic slavery. It has been established that over 4 million women are sold each year in the world.
2. In this connection the Assembly recalls and reaffirms Article 4, paragraph 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which prohibits slavery and servitude, and also the definition of slavery derived from the opinions and judgments of the European Commission of Human Rights and the European Court of Human Rights.
3. The Assembly also recalls Article 3 of the ECHR, which provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment, and Article 6, which proclaims the right of access to a court in civil and criminal matters, including cases where the employer enjoys immunity from jurisdiction.
... ... ...
5. It notes that the victims' passports are systematically confiscated, leaving them in a situation of total vulnerability with regard to their employers, and sometimes in a situation bordering on imprisonment, where they are subjected to physical and/or sexual violence.
6. Most of the victims of this new form of slavery are in an illegal situation, having been recruited by agencies and having borrowed money to pay for their journey.
7. The physical and emotional isolation in which the victims find themselves, coupled with fear of the outside world, causes psychological problems which persist after their release and leave them completely disoriented.
... ... ...
9. It regrets that none of the Council of Europe member states expressly make domestic slavery an offence in their criminal codes.
10. It accordingly recommends that the Committee of Ministers ask the governments of member states to:
i. make slavery and trafficking in human beings, and also forced marriage, offences in their criminal codes;
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vi. protect the rights of victims of domestic slavery by:
a. generalising the issuing of temporary and renewable residence permits on humanitarian grounds;
b. taking steps to provide them with protection and with social, administrative and legal assistance;
c. taking steps for their rehabilitation and their reintegration, including the creation of centres to assist, among others, victims of domestic slavery;
d. developing specific programmes for their protection;
e. increasing victims' time limits for bringing proceedings for offences of slavery;
f. establishing compensation funds for the victims of slavery.”
Recommendation 1663 (2004) further provides, as relevant, that:
“The Assembly thus recommends that the Committee of Ministers:
i. in general:
a. bring the negotiations on the Council of Europe draft convention on action against trafficking in human beings to a rapid conclusion;
b. encourage member states to combat domestic slavery in all its forms as a matter of urgency, ensuring that holding a person in any form of slavery is a criminal offence in all member states;
c. ensure that the relevant authorities in the member states thoroughly, promptly and impartially investigate all allegations of any form of slavery and prosecute those responsible;
d. recommend that member states review their immigration and deportation policies, granting victims of domestic slavery at least temporary residence permits (if possible, in conjunction with work permits) and allowing them to file complaints against their abusive husbands or employers if they wish to do so;
e. urge member states to provide an efficient support network for victims (including emergency accommodation, health care, psychological and legal counseling services) and attribute funds to non-governmental organisations working in this area;
f. ensure that victims of slavery are provided with reparation, including compensation, restitution, rehabilitation, satisfaction and guarantees of non-repetition;
ii. as concerns domestic servitude:
a. elaborate a charter of rights for domestic workers, as already recommended in Recommendation 1523 (2001) on domestic slavery. Such a charter, which could take the form of a Committee of Ministers' recommendation or even of a convention, should guarantee at least the following rights to domestic workers:
– the recognition of domestic work in private households as “real work”, that is, to which full employment rights and social protection apply, including the minimum wage (where it exists), sickness and maternity pay as well as pension rights;
– the right to a legally enforceable contract of employment setting out minimum wages, maximum hours and responsibilities;
– the right to health insurance;
– the right to family life, including health, education and social rights for the children of domestic workers;
– the right to leisure and personal time;
– the right for migrant domestic workers to an immigration status independent of any employer, the right to change employer and to travel within the host country and between all countries of the European Union and the right to the recognition of qualifications, training and experience obtained in the home country;
b. recommend the introduction of a system of accreditation for agencies placing domestic workers, which would commit these agencies to certain minimum standards, such as charging reasonable fees, tracking the employees they have placed and providing emergency help in cases of difficulty. Accredited agencies could have visa applications put forward on their behalf validated automatically;
c. ensure regular monitoring by appropriate authorities of the agencies accredited under the system referred to in sub-paragraph b above;
COMPLAINTS
The applicant complains that at the time of her ill-treatment the Government was in breach of its positive obligations under Article 4 of the Convention to have in place criminal laws penalising forced labour and servitude.
The applicant further complains that her treatment between 2002 and 2006 profoundly interfered with her right to respect for her private life and, in failing to adopt criminal laws penalising forced labour and servitude, the Government was also in breach of its positive obligations under Article 8 of the Convention.
Finally, the applicant complains that in the absence of any specific criminal offence of forced labour or servitude, the domestic law provided no remedy for her ill-treatment contrary to Articles 4 and 8 of the Convention.
QUESTIONS TO THE PARTIES